THE  LIBRARY 

OF 

THE  UNIVERSITY 
OE  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A    SYSTEM 


OF 


PENAL     LAW, 


FOR 


CONSISTING  OF 

A  CODE  OF  CRIMES  AND  PUNISHMENTS, 

A  CODE  OF  PROCEDURE, 

A  CODE  OF  EVIDENCE, 

A  CODE  OF  REFORM  AND  PRISON  DISCIPLINE, 

A  BOOK  OF  DEFINITIONS. 


PREPARED  UNDER  THE  AUTHORITY  OF  A  LAW  OF  THE  SAID  STATE. 


BY  EDWARD  LIVINGSTON. 


TO  WHICH  ARE  PREFIXED 

A   PRELIMINARY  REPORT   ON    THE    PLAN    OF  A  PENAL    CODE,  AND  INTRODUCTORY 

REPORTS  TO  THE  SEVERAL  CODES  EMBRACED  IN  THE 

SYSTEM    OF    PENAL    LAW. 


PUBLISHED  BY 

JAMES  KAY,  JUN.  &  BROTHER,  267  MARKET  STREET,  PHILADELPHIA: 
JOHN  I.  KAY  &  CO.,  PITTSBURGH. 


L 


Entered  according  to  the  act  of  congress,  in  the  year  1833,  by  James  and 
John  I.  Kay,  in  the  clerk's  office  of  the  district  court  of  the  eastern  district 
of  Pennsylvania. 


Printed  by 

JAMES  KAY,  JUN.  AND  Co. 

Printers  to  the  American  Philosophical  Society, 

Race  above  Fourth  Street, 

Philadelphia. 


ANALYTICAL  TABLE. 


ACT  OF  ASSEMBLY  OF  LOUISIANA,  10  FEBRUARY  1820    - 
APPOINTMENT  OF  EDWARD  LIVINGSTON 

RESOLUTION  OF  THE  ASSEMBLY  OF  LOUISIANA,  21  MARCH  1822 
PRELIMINARY  REPORT  ON  THE  PLAN  OF  A  PENAL  CODE 


INTRODUCTORY  REPORT  TO  THE  SYSTEM  OF  PENAL  LAW  -  49 
INTRODUCTORY  REPORT  TO  THE  CODE  OF  CRIMES  AND  PUNISHMENTS  -  113 
INTRODUCTORY  REPORT  TO  THE  CODE  OF  PROCEDURE  -  199 
INTRODUCTORY  REPORT  TO  THE  CODE  OF  EVIDENCE  -  -  247 
INTRODUCTORY  REPORT  TO  THE  CODE  OF  REFORM  AND  PRISON  DISCI- 
PLINE   305 


A  SYSTEM  OF  PENAL  LAW. 
INTRODUCTORY  TITLE        -        -  • 


-  357 


A  CODE  OF  CRIMES  AND  PUNISHMENTS. 

BOOK  I.     General  Provisions  366 

BOOK  II.  Of  Offences  and  Punishments    -        -        -        -        -        -  375 

TITLE     1.     General  divisions  and  descriptions  of  offences  and 

punishments 375 

TITLE    2.     Of  offences  against  the  sovereign  power  of  the. 

state  -..-.---  380 
TITLE  3.  Of  offences  against  the  legislative  power  -  -  381 
TITLE  4.  Of  offences  against  the  executive  power  -  -  382 
TITLE  5.  Of  offences  against  the  judiciary  power  -  -385 
TITLE  6.  Of  offences  against  public  tranquillity  ...  395 
TITLE  7.  Of  offences  against  the  right  of  suffrage  ,  -  -  398 
TITLE  8.  Of  offences  against  the  liberty  of  the  press  -  -  400 
TITLE  9.  Of  offences  against  public  records  -  -  -  -  402 
TITLE  10.  Of  offences  against  the  current  coin  and  public 

securities 403 

TITLE  11.     Of  offences  against  the  public  revenue          -        -  404 
TITLE  12.     Of  offences  which  affect  commerce  and  manufac- 
tures        406 

TITLE  13.     Of  offences  affecting  public  property    -        -        -  414 

68-1783 


iv  ANALYTICAL  TABLE. 

BOOK  II. 

TITLE  14.    Of  offences  affecting  the  public  roads,  &c.    -       -  414 
TITLE  15.     Of  offences  injurious  to  public  health    ...  416 

TITLE  16.     Of  offences  against  morals 417 

TITLE  17.     Of  offences  which  affect  persons  in  the  exercise  of 

their  religion  ......  420 

TITLE  18.    Of  offences  affecting  reputation    ....  421 

TITLE  19.    Of  offences  affecting  the  persons  of  individuals     -  427 
TITLE  20.    Of  offences  affecting  individuals  in  their  profession 

or  trade 453 

TITLE  21.     Of  offences  against  civil  and  political  rights  and 

conditions       -        -        -        -    *  -        -        -  454 
TITLE  22.     Of  offences  affecting  persons  in  their  profession  or 

trade      ........  456 

TITLE  23.    Of  offences  against  private  property     ...  456 

A  CODE  OF  PROCEDURE. 

INTRODUCTORY  TITLE       .........  743 

BOOK  I.     Of  the  means  of  preventing  offences ;  of  suppressing  those 
which  are  continuous ;  and  of  employing  the  military  in 
aid  of  the  civil  power   .......  476 

TITLE  1.     Of  preventing  offences  -        -  .        .  476 

TITLE  2.     Of  suppressing  permanent  offences         ...  484 
TITLE  3.     Of  the  manner  of  calling  for  and  employing  the 
military  force  of  the  state  in  aid  of  the  civil 
power     ...        -        -        -        .        -        .  498 
BOOK  II.   Of  the  mode  of  prosecuting  offences  ....  501 

TITLE  1.     Of  arrest  and  bail 501 

TITLE  2.    Of  the  proceedings  subsequent  to  the  commitment 

or  bail 512 

TITLE  3.     Of  the  mode  of  procedure  in  certain  cases  not  im- 
mediately connected  with  prosecutions     -        -  556 
BOOK  III.   Containing  the  forms  to  be  used  in  all  the  judicial  proceed- 
ings prescribed  or  authorized  by  this  code     ...  567 
TITLE  1.     Of  the  form  to  be  used  in  the  proceedings  authorized 

for  the  prevention  of  offences          ...  563 
TITLE  2.     Of  the  form  to  be  used  in  the  proceedings  authorized 

for  suppressing  permanent  offences  -        -  567 

TITLE  3.    Of  the  form  to  be  used  in  the  proceedings  authorized 

for  calling  for  and  employing  military  force      -  576 
TITLE  4.    Of  the  form  to  be  used  in  the  proceedings  authorized 

for  prosecuting  offences  ....  577 


A  CODE  OF  EVIDENCE. 

INTRODUCTORY  TITLE 644 

BOOK  I.  Of  the  nature  of  evidence  and  of  its  several  kinds  -  -645 
TITLE  1.  General  principles  and  definitions  ...  645 
TITLE  2.  Distribution  of  the  subject 645 

BOOK  II.  Of  the  rules  applicable  to  the  several  kinds  of  evidence  -  647 
TITLE  1.  Of  the  evidence  offered  to  a  judge  from  his  own 

knowledge      .......  647 


ANALYTICAL  TABLE. 


BOOK  II. 

TITLE  2. 
TITLE  3. 
TITLE  4. 
TITLE  5. 
TITLE  6. 
TITLE  7. 


Of  testimonial  evidence 
Of  scriptory  evidence     - 
Of  substantive  evidence 
Of  presumptive  evidence 
Of  direct  evidence 
Of  conclusive  evidence 


-  648 

-  656 

-  676 

-  676 

-  677 

-  678 


A  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

INTRODUCTORY  TITLE       _------._  691 

BOOK  I.     Places  of  confinement ;  of  their  construction  and  officers      -  693 
TITLE  1.     Of  places  of  confinement       .....  693 

TITLE  2.     Of  the  officers  and  attendants  of  the  several  places 

of  confinement,  and  their  several  duties  -        -  695 
BOOK  II.   Of  the  treatment  of  the  prisoners  in  the  several  places  of 

confinement          ........  706 

TITLE  1.     Of  the  prisoners  confined  in  the  house  of  detention    706 
TITLE  2.     Of  the  treatment  of  the  prisoners  in  the  penitentiary  707 
TITLE  3.     Of  the  school  of  reform         .....  714 

TITLE  4.     Of  the  pecuniary  concerns  of  the  several  places  of 

confinement    .......  722 

TITLE  5.     Of  the  discharge  of  the  convicts     ....  724 

TITLE  6.     How  the  property  of  persons  condemned  for  crime 

shall  be  disposed  of         .....  735 

BOOK  III.   Of  the  house  of  refuge  and  industry        ....  727 

TITLE  1.     Of  the  design  of  this  establishment        ...  737 
TITLE  2.     Of  the  different  departments  of  the  house  of  refuge 
and  industry,  and  of  the  description  of  persons 
admitted  to,  and  confined  in  each     ...  737 
TITLE  3.     Of  the  officers  of  the  house  of  refuge  and  industry, 

and  of  their  duties  .....  733 

TITLE  4.     Of  the  admission  into  the  house  of  refuge,  and  of  the 

employment  of  the  persons  admitted        -        -  729 
TITLE  5.     Of  the  police  of  the  house  of  refuge       ...  730 
TITLE  6.     Of  the  house  of  industry,  its  police,  and  the  employ- 
ment of  the  persons  confined  therein        -        -  730 
TITLE  7.     Of  the  pecuniary  concerns  of  the  house  of  refuge 

and  industry  -        -        -  .        .  731 


A  BOOK  OF  DEFINITIONS. 

TITLE  1.    General  provisions 
TITLE  2.     Definitions   - 


-  735 

-  735 


AN  ACT 


THE  GENERAL  ASSEMBLY  OF  LOUISIANA, 


RELATIVE  TO 


THE  CRIMINAL  LAWS  OF  THAT  STATE. 


APPROVED  10  FEBRUARY  1820. 


WHEREAS  it  is  of  primary  importance,  in  every  well  regulated  state, 
that  the  code  of  criminal  law  should  be  founded  on  one  principle,  viz. 
the  prevention  of  crime ;  that  all  offences  should  be  clearly  and  explicitly 
defined,  in  language  generally  understood  j  that  punishments  should  be 
proportioned  to  offences  ;  that  the  rules  of  evidence  should  be  ascer- 
tained as  applicable  to  each  oilonce  ;  that  the  mode  of  procedure  should 
be  simple,  and  the  duty  of  magistrates,  executive  officers  and  individuals 
assisting  them,  should  be  pointed  out  by  law  :  and  whereas  the  system 
of  criminal  law,  by  which  this  state  is  now  governed,  is  defective  in 
many,  or  all  of  the  points  above  enumerated,  therefore : 

Section  1.  Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  state  of  Louisiana  in  general  assembly  convened,  that  a  person 
learned  in  the  law  shall  be  appointed  by  the  senate  and  house  of  repre- 
sentatives at  this  session,  whose  duty  it  shall  be  to  prepare  and  present 
to  the  next  general  assembly,  for  its  consideration,  a  code  of  criminal 
law  in  both  the  French  and  English  languages,  designating  all  criminal 
offences  punishable  by  law  ;  defining  the  same  in  clear  and  explicit 
terms;  designating  the  punishment  to  be  inflicted  on  each;  laying  down 
the  rules  of  evidence  on  trials;  directing  the  whole  mode  of  procedure, 
and  pointing  out  the  duties  of  the  judicial  and  executive  officers  in  the 
performance  of  their  functions  under  it. 

Section  2.  And  be  it  further  enacted,  that  the  person  so  to  be 
chosen,  shall  receive  for  his  services  such  compensation  as  shall  be 
determined  by  the  general  assembly,  at  their  next  session,  and  that  a 
sum  of  five  hundred  dollars  shall  be  paid  to  him,  on  a  warrant  of  the 
governor  upon  the  state  treasury,  to  enable  him  to  procure  such  in- 
A 


formation  and  documents  relative  to  the  operation  of  the  improvements 
in  criminal  jurisprudence,  particularly  of  the  penitentiary  system  in  the 
different  states,  as  he  may  deem  useful  to  report  to  the  general  assembly 
in  considering  the  project  of  a  code:  he  shall  account  to  the  general 
assembly,  in  what  manner  the  said  five  hundred  dollars  has  been  dis- 
posed of. 


IN 

THE  GENERAL  ASSEMBLY  OF  LOUISIANA 

13  FEBRUARY  1821. 


WE,  the  undersigned,  secretary  of  the  senate  and  clerk  of  the  house 
of  representatives  of  the  state  of  Louisiana,  do  hereby  certify,  that  on 
the  thirteenth  of  February  in  the  year  of  our  lord  one  thousand  eight 
hundred  and  twenty-one,  EDWARD  LIVINGSTON,  Esq.  was  elected  and 
appointed  by  the  joint  ballot  of  the  general  assembly  of  said  state,  to 
draw  and  prepare  a  criminal  code.  In  testimony  whereof,  we  have 
hereunto  set  our  hands. 

J.  CHABAUD, 

Secretary  of  the  Senate. 

CANONGE, 
Clerk  of  the  House  of  Representatives. 

New-Orleans,  March  28,  1822. 


RESOLUTIONS 


THE  GENERAL  ASSEMBLY  OF  LOUISIANA, 


21  MARCH  1832. 


RESOLVED  by  the  senate  and  house  of  representatives  in  general 
assembly  convened,  that  the  general  assembly  do  approve  of  the  plan 
proposed  by  Edward  Livingston,  Esq.,  in  his  report,  made  in  pursu- 
ance of  the  act  entitled  "  an  act  relative  to  the  criminal  laws  of  this 
state,"  and  earnestly  solicit  Mr  Livingston  to  prosecute  this  work, 
according  to  said  report;  that  two  thousand  copies  of  the  same,  together 
with  the  part  of  the  projected  code  thereto  annexed,  be  printed  in 
pamphlet  form;  one  thousand  of  which  shall  be  printed  in  French  and 
one  thousand  in  English,  under  the  direction  of  the  said  Edward 
Livingston,  Esq.,  of  which  five  copies  be  delivered  to  each  member  of 
the  present  general  assembly,  fifty  copies  to  the  governor,  one  copy  to 
each  of  the  judges  of  the  supreme  court,  the  district  judges,  the  judge 
of  the  criminal  court,  the  attorney-general  and  district  attorneys,  the 
parish  judges,  two  hundred  copies  to  the  said  Edward  Livingston,  Esq.; 
and  that  the  balance  shall  be  for  the  use  of  the  state,  of  which  one  half 
shall  .be  deposited  in  the  hands  of  the  secretary  of  the  senate  and 
clerk  of  the  house  of  representatives,  and  the  other  half  in  the  office  of 
the  secretary  of  the  state. 

And  be  it  further  resolved,  that  the  governor  be  requested,  and  it  is 
hereby  made  his  duty  to  contract  for  the  printing  of  said  work,  and  to 
pay  for  the  same  out  of  the  contingent  fund. 

And  be  it  further  resolved,  that  a  sum  of  one  thousand  dollars  be 
paid  to  Edward  Livingston,  Esq.,  on  his  warrant,  out  of  the  treasury 
of  the  state,  to  be  on  account  of  the  compensation  to  him  allowed,  when 
his  work  shall  be  completed. 

A.  BEAUVAIS, 
Speaker  of  the  House  of  Representatives. 

J.  POYDRAS, 

President  of  the  Senate. 

Approved,  March  21,  1822, 

T.  B.  ROBERTSON, 

Governor  of  the  State  of  Louisiana. 


REPORT 


EDWARD    LIVINGSTON 


THE   HONOURABLE  THE   SENATE   AND  HOUSE   OF   REPRESENTATIVES 
OF  THE  STATE  OF  LOUISIANA  IN  GENERAL  ASSEMBLY  CONVENED. 


IN  PURSUANCE  OF  THE  ACT  ENTITLED  "  AN  ACT  RELATIVE  TO  THE  CRIMINAL  LAWS 

OF  THAT  STATE." 


HAVING  been  honoured  by  an  appointment  at  the  last  session,  to  per- 
form the  duties  required  by  "an  act  relative  to  the  criminal  laws  of 
the  state,"  I  have  thought  it  necessary  to  report  to  the  general  assembly, 
the  progress  that  has  been  made  in  the  work,  and  the  reasons  which 
have  prevented  its  completion.  In  undertaking  those  duties,  I  relied 
much  on  the  aid  which  I  expected  to  derive  from  the  other  states;  for, 
although  none  of  them  has  framed  a  code  on  so  comprehensive  a  plan 
as  that  contemplated  by  our  law,  yet  most  of  them  have  established  the 
penitentiary  system,  which  is  intended  to  form  the  basis  of  our  legisla- 
tion on  this  subject.  Before  I  could  avail  myself  of  the  advantage 
which  those  experiments  afforded,  it  was  necessary  to  know,  with 
precision,  their  results.  This  information  could  only  be  obtained  by 
collecting  the  returns  and  official  reports  of  the  different  establishments, 
and  inducing  men  of  eminence  and  abilities  to  communicate  their  obser- 
vations on  the  subject.  Knowing  also  the  advantage  to  be  derived 
from  a  comparison  of  the  opinions  of  eminent  jurists  and  statesmen  on 
other  leading  principles,  which  must  be  embodied  in  the  system,  I 
addressed  several  copies  of  the  annexed  circular  letter  to  the  governors 
of  each  state,  with  the  request,  that  they  might  be  put  into  the  hands 
of  men,  from  whom  the  desired  information  might  be  expected:  these, 
as  well  as  a  number  of  similar  applications,  1  did  hope,  would  have 
procured  a  body  of  information  useful  not  only  to  me  in  framing  the 
work,  but  to  the  legislature  in  judging  of  it. 

This  hope  has,  however,  as  yet  been  but  partially  realized.     I  have 


6  REPORT  ON 

received  returns  of  the  state  of  the  penitentiary  only  from  Massa- 
chuscts.  Governor  Wollcott  and  Judge  Swift  of  Connecticut,  Chan- 
cellor Kent  of  New  York,  Judge  Holman  of  Ohio,  Mr  Rawle  of 
Pennsylvania,  Mr  Bowen  of  Rhode  Island,  Mr  Brice  of  Maryland, 
and  Colonel  Johnson  of  Kentucky,  have  communicated  to  me  some 
useful  information;  with  these  exceptions,  the  gentlemen  to  whom  my 
letters  were  addressed,  have  been  too  much  occupied  in  their  own 
states  to  attend  to  the  affairs  of  ours. 

Our  minister  in  England  has  had  the  goodness  to  send  to  me  the 
reports  of  the  committees  of  the  house  of  commons,  appointed  to 
inquire  into  the  propriety  of  a  revision  of  their  penal  laws  ;  documents 
of  great  utility,  to  show  the  operation  of  the  law  we  have  partially 
adopted,  in  that  country  from  which  we  have  borrowed  it. 

It  appears  that  these  reports  are  not  easily  procured,  and  that  Mr 
Rush  was  indebted  for  them  to  Mr  Jeremy  Bentham,  whose  writings 
have  thrown  so  much  light  on  the  subject  of  criminal  legislation,  and 
who,  in  a  note  addressed  to  Mr  Rush,  on  our  undertaking,  has  made 
a  suggestion  which  he  will  find  has  not  been  disregarded. 

I  certainly  lost  some  time  in  waiting  for  answers  to  my  letters,  but 
I  cannot,  in  candour,  state  this,  (even  with  the  necessary  attention  to 
my  professional  business)  to  have  been  the  only  cause  why  the  task  I 
have  undertaken  is  not  yet  fully  performed. 

I  never  so  far  overrated  my  own  powers,  as  to  suppose  that  the 
whole  plan  would  be  executed  in  the  short  interval  between  the  two 
sessions,  but  I  did  think,  that  parts  of  it  might  be  prepared,  and 
submitted  for  the  sanction  of  the  present  legislature,  leaving  the  others 
to  be  acted  upon  at  a  future  period.  A  closer  view  of  the  subject, 
however,  convinced  me  of  my  error.  In  establishing  the  principles 
on  which  the  work  was  to  be  framed,  and  tracing  the  plan  of  its  differ- 
ent divisions,  I  found  that  its  parts  were  so  closely  connected,  and 
that  continued  references  from  the  one  to  the  other  were  so  unavoid- 
able, as  to  render  it  difficult  fairly  to  judge  of,  or  decide  on  any  part 
without  examining  the  whole.  I  therefore  determined  to  report  to  the 
general  assembly,  the  progress  I  had  made,  to  develope  the  plan  on 
which  I  proposed  to  execute  the  work,  to  give  them  some  of  the  de- 
tached parts  as  specimens  of  the  execution,  and  then  to  take  their  di- 
rection whether  it  should  be  completed  or  not. 

The  introductory  notice  herewith  submitted,  gives  the  different  divi- 
sions of  the  code,  into  books,  chapters  and  sections;  the  whole  is  sub- 
divided into  articles,  numbered  progressively  through  each  book,  so 
that  citations  may  be  made  by  referring  to  the  article  and  book  only. 
A  continued  numeration  of  the  articles,  through  the  whole  work,  has 
been  found,  in  other  instances,  inconvenient,  and  carrying  {he  numbers 
through  each  chapter  or  section  only,  increases  the  difficulty  of  refer- 
ence. In  the  same  notice,  will  be  found  some  general  provisions,  made 
to  obviate  the  necessity  of  those  repetitions,  which  increased  the  bar- 
barism of  our  legal  language  ;  but  the  omission  of  which  has  sometimes 
counteracted  the  intent  of  the  legislature.  The  instance  of  two  statutes, 
which  were  made  in  England,  to  punish,  the  one  the  stealing  of  horses, 
and  the  other  the  stealing  of  a  horse,  is  familiar  to  lawyers;  and  indeed 
it  has  been  doubted  by  some,  whether  a  third  statute  were  not  neces- 
sary, to  include  the  female  part  of  the  species. 

One  other  article  in  this  notice  points  to  a  method,  which  will  also, 


THE  PLAN  OF  A  PENAL  CODE.  7 

it  is  supposed,  tend  to  render  the  code  both  explicit  and  concise.  Tech- 
nical terms  are  never  used  in  the  work,  where  common  expressions 
could  be  found  to  give  the  same  idea.  The  employment  of  them,  how- 
ever, is,  in  many  instances,  unavoidable.  In  all  such  cases,  and  when- 
ever a  word,  or  a  phrase,  is  either  ambiguous,  or  employed  in  any 
other  sense  than  that  which  is  given  to  it  in  common  parlance,  it  be- 
comes necessary  to  explain  the  precise  meaning  which  is  attached  to  it 
in  the  code.  To  this  end,  whenever  any  such  expressions  occur  in  the 
course  of  the  work,  they  are  to  be  printed  in  a  particular  character, 
which  will  serve  as  a  notice,  that  they  are  defined  and  explained. 
These  definitions  and  explanations  form  the  first  book. 

This,  though  necessarily  the  first  in  numerical  order,  it  is  obvious, 
must  be  the  last  executed.  The  words  requiring  explanation  are  no- 
ted, and  the  definitions  written,  as  the  work  progresses  ;  when  com- 
plete, it  will  be  submitted  to  men  unversed  in  the  language  of  the  law, 
and  every  word  not  fully  understood  by  them,  will  be  marked  for  ex- 
planation. The  foregoing  parts  of  the  plan  are  believed  to  be  new, 
and  therefore  require  the  stricter  attention  to  the  propriety  of  their  en- 
actment: they  suggested  themselves  to  me,  as  the  means  of  making  the 
work,  at  once  concise,  and  easily  comprehended  by  those  who  are  most 
interested  in  understanding  it. 

The  second  book  begins  with  a  preamble,  which  states  the  reasons 
that  called  for  the  enactment  of  a  criminal  code,  and  which  sanctions, 
by  a  solemn  legislative  declaration,  the  principles  on  which  its  several 
provisions  are  founded.  These  principles  once  studied,  and  after  pro- 
per discussion  adopted,  will  serve  as  a  standard  to  measure  the  propri- 
ety of  every  other  part  of  the  code:  with  these  rules  constantly  before 
us,  and  duly  impressed  on  our  minds,  we  can  proceed  with  confidence 
and  comparative  ease,  to  the  task  of  penal  legislation;  and  we  may  see 
at  a  glance,  or  determine  by  a  single  thought,  whether  any  proposed 
provision  is  consonant  to  those  maxims  which  we  have  adopted  as  the 
dictates  of  truth.  The  incongruities  which  have  pervaded  our  sys- 
tem will  disappear;  every  new  enactment  will  be  impressed  with  the 
character  of  the  original  body  of  laws;  and  our  penal  legislation  will 
no  longer  be  a  piece  of  fretwork  exhibiting  the  passions  of  its  several 
authors,  their  fears,  their  caprices,  or  the  carelessness  and  inattention 
with  which  legislators  in  all  ages  and  in  every  country  have,  at  times, 
endangered  the  lives,  the  liberties,  and  fortunes  of  the  people,  by 
inconsistent  provisions,  cruel  or  disproportioned  punishments,  and  a 
legislation,  weak  and  wavering,  because  guided  by  no  principle,  or  by 
one  that  was  continually  changing,  and  therefore  could  seldom  be 
right.  This  division  of  the  code  is  deemed  to  be  of  the  highest  im- 
portance: all  the  other  parts  will  derive  their  character  from  this;  it  is 
the  foundation  of  the  whole  work,  and,  if  well  laid,  the  superstructure 
raised  in  conformity  to  it  cannot  be  essentially  faulty.  It  is  the  result 
of  much  reflection,  guided  by  an  anxiety  to  discover  the  truth,  and  to 
express  it  with  precision. 

The  remainder  of  the  second  book  is  devoted  to  the  establishment 
of  general  dispositions,  applicable  to  the  exercise  of  legislative  power 
in  penal  jurisprudence;  to  prosecutions  and  trials;  to  a  designation  of 
the  persons  who  are  amenable  to  the  provisions  of  this  code;  to  a  state- 
ment of  the  circumstances  under  which  acts,  that  would  otherwise  be 
offences,  may  be  justified  or  excused;  to  the  repetition  of  offences;  to 


8  REPORT  ON 

the  situation  of  different  persons  participating  in  the  same  offence,  as 
principals,  accomplices  or  accessaries. 

The  enunciation  of  these  general  provisions,  it  is  supposed,  will 
greatly  tend,  not  only  to  elucidate,  but  abridge  the  work  ;  by  throwing 
them  into  a  single  chapter,  memory  is  assisted,  order  is  better  preserved, 
and  repetition  very  much  avoided.  Among  those  which  relate  to 
the  exercise  of  legislative  power,  are  some  that  ought  particularly  to  fix 
the  attention  of  the  general  assembly;  such  is  one  for  the  exclusion  of 
that  class  of  offences,  which  figures  in  the  English,  and  most  other  penal 
codes,  under  the  vague  description  of  offences  against  the  laws  of  mo- 
rality, of  nature,  and  of  religion.  The  will  of  the  legislature  is  estab- 
lished as  the  only  rule  ;  and  the  crude  and  varying  opinions  of  judges, 
as  to  the  extent  of  this  uncertain  code  of  good  morals,  are  no  longer  to 
usurp  the  authority  of  law.  Connected  with  this,  is  the  provision 
which  prohibits  the  punishment  of  any  act  not  expressly  forbidden  by 
the  letter  of  the  law,  under  the  pretence  that  it  comes  within  its 
spirit. 

By  the  criminal  laws  which  now  govern  us,  most  offences  are  de- 
scribed in  the  technical  words  of  the  English  jurisprudence,  and  we  are 
referred  to  it  for  their  explanation  ;  hence  our  judges  have  deemed 
themselves  bound  to  adopt  those  definitions  which  have  been  given  by 
the  English  courts,  and  the  whole  train  of  constructive  offences  has 
been  brought  into  our  law.  The  institution  of  the  trial  by  jury,  the 
rare  infliction  of  torture  ;  and  in  latter  times,  the  law  of  habeas  corpus, 
gave  a  decided  superiority  to  the  penal  law  of  England  over  that  of  its 
neighbours.  The  nation,  unfortunately,  mistook  this  superiority  for 
perfection  ;  and  while  they  proudly  looked  down  on  the  rest  of  Europe, 
and  reproached  them  with  their  tortures,  their  inquisitions,  and  secret 
tribunals,  they  shut  their  eyes  to  the  imperfections  of  their  own  code. 
Prisoners  were  denied  the  assistance  of  counsel;  men  were  executed 
because  they  could  not  read  ;  those  who  refused  to  answer,  were  con- 
demned to  die  under  the  most  cruel  torture.  Executions  for  some 
crimes  were  attended  with  butchery  that  would  disgust  a  savage.  The 
life  and  honour  of  the  accused  were  made  to  depend  on  the  uncertain 
issue  of  a  judicial  combat.  A  wretched  sophistry  introduced  the  doc- 
trine of  corrupted  blood.  Heretics  and  witches  were  committed  to  the 
flames.  No  proportion  was  preserved  between  crimes  and  punishments. 
The  cutting  of  a  twig,  and  the  assassination  of  a  parent ;  breaking  a  fish- 
pond, and  poisoning  a  whole  family  or  murdering  them  in  their  sleep, 
all  incurred  the  same  penalties  ;  and  two  hundred  different  actions,  many 
not  deserving  the  name  of  offences,  were  punishable  by  death.  This 
dreadful  list  was  increased  by  the  legislation  of  the  judges,  who  declared 
acts  which  were  not  criminal  under  the  letter  of  the  law,  to  be  punisha- 
ble by  virtue  of  its  spirit.  The  statute  gave  the  text,  and  the  tribunals 
wrote  the  commentary  in  letters  of  blood;  and  extended  its  penalties  by 
the  creation  of  constructive  offences.  The  vague,  and  sometimes  unin- 
telligible language,  employed  in  the  penal  statutes  ;  and  the  discordant 
opinionsof  elementary  writers,  gave  a  colour  of  necessity  to  this  assump- 
tion of  power  ;  and  the  English  nation  have  submitted  to  the  legislation 
of  its  courts,  and  seen  their  fellow  subjects  hanged  for  constructive 
felonies  ;  quartered  for  constructive  treasons  ;  and  roasted  alive  for 
constructive  heresies,  with  a  patience  that  would  be  astonishing,  even 
if  their  written  laws  had  sanctioned  the  butchery.  The  first  construe- 


THE  PLAN  OF  A  PENAL  CODE.  9 

Vive  extension  of  a  penal  statute  beyond  its  letter,  is  an  ex  post  facto  law, 
as  regards  the  offence  to  which  it  is  applied  ;  and  is  an  illegal  assumption 
of  legislative  power,  so  far  as  it  establishes  a  rule  for  future  decisions. 
In  our  republic,  where  the  different  departments  of  government  are 
constitutionally  forbidden  to  interfere  with  each  other's  functions,  the 
exercise  of  this  power  would  be  particularly  dangerous  ;  it  was  there- 
fore thought  proper  to  forbid  it  by  an  express  prohibition.  Some  ac- 
tions, injurious  to  society,  may,  by  this  means,  be  permitted  for  a  time, 
but  it  was  deemed  infinitely  better  to  submit  to  this  temporary  incon- 
venience, than  to  allow  the  exercise  of  a  power  so  much  at  war  with 
the  principles  of  our  government.  It  may  be  proper  to  observe,  that 
the  fear  of  these  consequences  is  not  ideal,  and  that  the  decisions  of  all 
tribunals,  under  the  common  law,  justify  the  belief,  that  without  some 
legislative  restraint,  our  courts  would  not  be  more  scrupulous  than  those 
of  other  countries,  in  sanctioning  this  dangerous  abuse.  In  another  part 
of  the  code,  it  is  intended  to  insert  a  provision,  to  bring  before  the  legis- 
lature, at  stated  periods,  all  those  cases  in  which  the  operation  of  the 
law  is  supposed  to  fall  short  of,  or  to  extend  beyond  the  intention  of 
those  who  framed  it;  the  defects,  if  really  such,  will  then  be  cured  by 
the  power  legally  authorized  to  apply  the  remedy;  the  harmony  of  our 
constitutional  distribution  of  powers  will  be  undisturbed;  and  the  ends 
of  public  justice  attained  with  greater  regularity  and  better  effect. 

Our  constitution,  containing  a  very  imperfect  declaration  of  rights, 
leaves  the  legislative  power  entirely  uncontrolled  in  some  points,  where 
restraint  has,  in  most  free  governments,  been  deemed  essential ;  a  ma- 
jority may  establish  their  religion  as  that  of  the  state  ;  non-conformity 
may  be  punished  as  heresy  ;  and  even  the  toleration  of  other  creeds  may 
be  refused  ;  without  violating  any  express  constitutional  law.  Corrup- 
tion of  blood  may  be  established,  and  it  is  even  somewhat  doubtful, 
whether,  strictly  speaking,  it  does  not,  under  the  general  terms  in  which 
the  rules  of  the  common  law  are  adopted,  now  exist.  No  legislative 
act  can  apply  an  effectual  remedy  to  these  and  other  constitutional  de- 
fects ;  but  their  existence  has  called  for  a  longer  enunciation  of  general 
principles  in  the  code,  than  would  otherwise  have  been  necessary.  Our 
successors  will  not  be  bound  to  observe  them,  but  we  shall  evince  our 
own  conviction  of  their  truth  ;  and  by  impressing  them  on  the  minds  of 
our  constituents,  render  any  attempt  to  undermine  or  destroy  them, 
more  difficult  and  more  odious.  Acknowledged  truths  in  politics  and 
jurisprudence,  can  never  be  too  often  repeated.  When  the  true  prin- 
ciples of  legislation  are  impressed  on  the  minds  of  the  people  ;  when 
they  see  the  reasons  of  the  laws  by  which  they  are  governed,  they  will 
obey  them  with  cheerfulness,  if  just,  and  know  how  to  change  them,  if 
oppressive.  The  reporter,  therefore,  has  thought  it  an  essential  part 
of  his  duty  to  fortify  the  precepts  of  the  projected  code,  by  assigning 
the  reasons  on  which  they  are  founded  ;  thus  to  open  the  arcana  of  penal 
legislation,  and  to  show  that  the  mystery  in  which  it  has  hitherto  been 
involved,  was  not  inherent  in  the  subject,  but  must  disappear,  when- 
ever its  true  principles  are  developed. 

Among  the  general  provisions,  is  also  found  one,  asserting  the  right 
to  publish,  without  restraint,  the  account  of  all  proceedings  in  criminal 
courts,  and  freely  to  discuss  the  conduct  of  judges,  and  other  officers 
employed  in  administering  justice.  That  this  may  be  done  more  effec- 
tually, it  is  provided  that  the  judge  shall,  at  the  request  either  of  the 
B 


10  REPORT  ON 

accused  or  of  the  prosecutor,  state  and  record  his  decisions,  with  the 
ons  on  which  they  are  founded.  In  a  subsequent  part  of  the  work, 
it  will  he  made  the  duty  of  a  particular  officer  to  puhlish  accurate  ac- 
counts of  all  trials,  remarkable  either  for  the  atrocity  of  the  offence,  or 
the  importance  of  the  principles  decided  in  the  course  of  the  proceed- 
ing. Publicity  is  an  object  of  such  importance  in  free  governments, 
that  it  not  only  ought  to  be  permitted,  but  must  be  secured  by  a  species 
of  compulsion.  The  people  must  be  forced  to  know  what  their  servants 
are  doing,  or  they  will,  like  other  masters,  submit  to  imposition,  rather 
than  take  the  trouble  of  inquiring  into  the  state  of  their  affairs.  No 
nation  ever  yet  found  any  inconvenience  from  too  close  an  inspection 
into  the  conduct  of  its  officers  ;  but  many  have  been  brought  to  ruin, 
and  reduced  to  slavery,  by  suffering  gradual  imposition  and  abuses, 
which  were  imperceptible,  only  because  the  means  of  publicity  had  not 
been  secured.  In  modern  times,  the  press  is  so  powerful  an  engine  to 
effect  this,  that  the  nation  which  neglects  to  employ  it,  in  promulgating 
the  operations  of  every  department  in  government,  can  neither  know 
nor  deserve  the  blessings  of  freedom.  The  important  task  of  spreading 
this  kind  of  information,  ought  not,  therefore,  be  left  to  the  chance  of 
private  exertion  ;  it  must  be  made  a  public  duty  ;  every  one  employed 
in  the  administration  of  justice  will  then  act  under  the  conviction,  that 
his  official  conduct  and  opinions  will  be  discussed  before  a  tribunal  in 
which  he  neither  presides  nor  officiates.  The  effects  of  such  a  convic- 
tion may  be  easily  imagined,  and  we  may  fairly  conclude,  that  in  pro- 
portion to  its  strength,  will  be  the  fidelity  and  diligence  of  those  upon 
whom  it  operates. 

By  our  constitution  the  right  of  a  trial  by  jury  is  secured  to  the  ac- 
cused, but  it  is  not  exclusively  established.  This,  however,  may  be 
done  by  law,  and  there  are  so  many  strong  reasons  in  its  favour,  that  it 
has  been  thought  proper  to  insert  in  the  code,  a  precise  declaration,  that 
in  all  criminal  prosecutions,  the  trial  by  jury  is  a  privilege  which  can- 
not be  renounced.  Were  it  left  entirely  at  the  option  of  the  accused, 
a  desire  to  propitiate  the  favour  of  the  judge,  ignorance  of  his  true  inter- 
est, or  the  confusion  incident  to  his  situation,  might  induce  him  to  waive 
the  advantage  of  a  trial  by  his  country,  and  thus,  by  degrees,  accustom 
the  people  to  a  spectacle  they  ought  never  to  behold  ;  a  single  man  de- 
termining the  fact,  applying  the  law,  and  disposing  at  his  will,  of  the 
life,  liberty,  and  reputation  of  a  citizen. 

In  proposing  this  change  in  our  law,  1  may  be  permitted  to  make  a 
few  reflections,  to  show  its  importance.  The  trial  by  jury  formed  no 
part  of  the  jurisprudence  of  the  different  powers  which  governed  Lou- 
isiana prior  to  its  last  cession.  It  was  first  introduced  when  the  pro- 
vince became  incorporated  with  the  United  States,  as  one  of  its  territo- 
ries. By  the  first  act  for  effecting  this  union,  the  trial  by  jury  was  es- 
tablished in  capital  cases  ;  and  in  all  others,  both  civil  and  criminal, 
was  left,  as  in  all  cases  it  is  now,  optional  with  the  parties.  In  the 
second  grade  of  government,  it  was  provided,  that  the  people  should 
have  the  benefit  of  the  trial  by  jury,  but  it  was  not  declared  the  only 
mode  of  trial ;  and  our  state  constitution  has  adopted  it  in  original  cases, 
nearly  in  the  same  words.  This  indifference  in  our  constitutional  com- 
pacts, to  an  institution  of  such  vital  importance,  has  had  the  most  inju- 
rious consequences,  which  have  been  increased  by  subsequent  provi- 
sions. In  civil  cases  it  is  already  banished  from  our  courts,  or  used 


THE  PLAN  OF  A  PENAL  CODE.  11 

only  as  an  engine  of  delay,  or  as  an  awkward  and  oppressive  vehicle  for 
transmitting  testimony,  to  be  decided  only  by  the  supreme  court. 
This  degradation  of  the  functions  of  jurors,  in  cases  of  property,  cer- 
tainly does  not  tend  to  render  them  respectable  in  cases  affecting  life 
and  liberty.  In  criminal  cases,  the  attorney-general,  I  believe,  demands 
a  trial  by'jury,  as  he  has  a  right  to  do,  in  all  serious  cases,  even  where 
the  accused  is  willing  to  waive  it.  But  a  prosecutor  less  friendly  to  the 
institution,  and  a  judge  more  desirous  to  increase  his  powers  than  the 
gentlemen  who  now  fill  those  stations,  could  easily  find  means  to  make 
the  jury  as  useless,  as  rarely  employed,  and  as  insignificant  in  a  crimi- 
nal court,  as  our  laws  have  already  made  it  in  civil  jurisdiction. 

Those  who  advocate  the  present  disposition  of  our  law,  say — admit- 
ting the  trial  by  jury  to  be  an  advantage,  the  law  does  enough  when  it 
gives  the  accused  the  option  to  avail  himself  of  its  benefits  ;  he  is  the 
best  judge  whether  it  will  be  useful  to  him  ;  and  it  would  be  unjust  to 
direct  him  in  so  important  a  choice.  This  argument  is  specious,  but  not 
solid.  There  are  reasons,  and  some  have  already  been  stated,  to  show 
that  this  option,  in  many  cases,  cannot  be  freely  exercised.  There  is, 
moreover,  another  interest,  besides  that  of  the  culprit,  to  be  considered; 
if  he  be  guilty,  the  state  has  an  interest  in  his  conviction  ;  and  whether 
guilty  or  innocent,  it  has  a  higher  interest,  that  the  fact  should  be  fairly 
canvassed  before  judges  inaccessible  to  influence,  and  unbiassed  by  any 
false  views  of  official  duty.  It  has  an  interest  in  the  character  of  its 
administration  of  justice,  and  a  paramount  duty  to  perform,  in  render- 
ing it  free  from  suspicion.  It  is  not  true,  therefore,  to  say,  that  the 
laws  do  enough,  when  they  give  the  choice  (even  supposing  it  could  be 
made  with  deliberation)  between  a  fair  and  impartial  trial,  and  one  that 
is  liable  to  the  strongest  objections.  They  must  do  more,  they  must 
restrict  that  choice,  so  as  not  to  suffer  an  ill-advised  individual  to  de- 
grade them  into  instruments  of  ruin,  though  it  should  be  voluntarily 
inflicted  ;  or  of  death,  though  that  death  should  be  suicide. 

Another  advantage  of  rendering  this  mode  of  trial  obligatory  is,  that 
it  diffuses  the  most  valuable  information  among  every  rank  of  citizens; 
it  is  a  school,  of  which  every  jury  that  is  impanelled,  is  a  separate  class; 
where  the  dictates  of  the  laws,  and  the  consequences  of  disobedience  to 
them,  are  practically  taught.  The  frequent  exercise  of  these  important 
functions,  moreover,  gives  a  sense  of  dignity  and  self-respect,  not  only 
becoming  the  character  of  a  free  citizen,  but  which  adds  to  his  private 
happiness.  Neither  party  spirit,  nor  intrigue,  nor  power,  can  deprive 
him  of  this  share  in  the  administration  of  justice,  though  they  can  humble 
the  pride  of  every  other  office,  and  vacate  every  other  place.  Every 
time  he  is  called  to  act  in  this  capacity,  he  must  feel  that  though  per- 
haps placed  in  the  humblest  station,  he  is  yet  the  guardian  of  the  life, 
the  liberty,  and  reputation  of  his  fellow-citizens,  against  injustice  and 
oppression  ;  and  that,  while  his  plain  understanding  has  been  found  the 
the  best  refuge  for  innocence,  his  incorruptible  integrity  is  pronounced 
a  sure  pledge  that  guilt  will  not  escape.  A  state  whose  most  obscure 
citizens  are  thus  individually  elevated  to  perform  those  august  func- 
tions ;  who  are,  alternately,  the  defenders  of  the  injured,  the  dread  of 
the  guilty,  the  vigilant  guardians  of  the  constitution  ;  without  whose 
consent  no  punishment  can  be  inflicted,  no  disgrace  incurred;  who  can, 
by  their  voice,  arrest  the  blow  of  oppression,  and  direct  the  hand  of  jus- 
tice where  to  strike.  Such  a  state  can  never  sink  into  slavery,  or  easily 


12  REPORT  ON 

submit  to  oppression  :  corrupt  rulers  may  pervert  the  constitution  ; 
ambitious  demagogues  may  violate  its  precepts  ;  foreign  influence  may 
control  its  operations  ;  but  while  the  people  enjoy  the  trial  by  JURY, 
taken  by  lot  from  among  themselves,  they  cannot  cease  to  be  free. 
The  information  it  spreads  ;  the  sense  of  dignity  and  independence  it 
inspires  ;  the  courage  it  creates,  will  always  give  them  an  energy  of 
resistance,  that  can  grapple  with  encroachment ;  and  a  renovating  spirit 
that  will  make  arbitrary  power  despair.  The  enemies  of  freedom  know 
this  ;  they  know  how  admirable  a  vehicle  it  is  to  convey  the  contagion 
of  those  liberal  principles,  which  attack  the  vitals  of  their  power,  and 
they  guard  against  its  introduction  with  more  care  than  they  would  take 
to  avoid  pestilential  disease.  In  countries  where  it  already  exists,  they 
insiduously  endeavour  to  innovate,  because  they  dare  notopenly  destroy; 
changes  inconsistent  with  the  spirit  of  the  institution  are  introduced, 
under  the  plausible  pretext  of  improvement :  the  common  class  of  citi- 
zens are  too  ill-informed  to  perform  the  duties  of  jurors — a  selection  is 
necessary.  This  choice  must  be  confided  to  an  agent  of  executive 
power,  and  must  be  made  among  the  most  eminent  for  education, 
wealth  and  respectability  ;  so  that,  after  several  successive  operations 
of  political  chemistry,  a  shining  result  may  be  obtained,  freed,  indeed, 
from  all  republican  dross,  but  without  any  of  the  intrinsic  value  that  is 
found  in  the  rugged,  but  inflexible  integrity  and  incorruptible  worth 
of  the  original  composition.  Men,  impanelled  by  this  process,  bear 
no  resemblance  but  in  name  to  the  sturdy,  honest,  unlettered  jurors, 
who  derive  no  dignity  but  from  the  performance  of  their  duties  ;  and 
the  momentary  exercise  of  whose  functions  gives  no  time  for  the  work 
of  corruption,  or  the  effect  of  influence  or  fear.  By  innovations  such 
as  these,  the  institution  is  so  changed,  as  to  leave  nothing  to  attach  the 
affections,  or  awaken  the  interest  of  the  people,  and  it  is  neglected  as 
an  useless,  or  abandoned  as  a  mischievous  contrivance. 

In  England,  the  panel  is  made  up  by  an  officer  of  the  crown  ;  but 
there  are  many  correctives  which  lessen  the  effect  of  this  vice.  The 
return,  except  in  very  special  cases,  is  made,  not  with  a  view  to  any 
particular  cause,  but  for  the  trial  of  all  that  are  at  issue  ;  and  out  of  a 
large  number  returned  on  the  panel,  the  twelve  taken  for  the  trial  are 
designated  by  lot :  in  capital  cases,  also,  the  extent  to  which  challenges 
are  allowed,  is  calculated  to  defeat  any  improper  practices  ;  and  when 
we  add  to  this  the  general  veneration  for  this  mode  of  trial,  the  force 
of  public  opinion,  guided  by  a  spirit  which  it  has  created,  and  diffused, 
and  perpetuated,  we  shall  see  the  reason  why  the  trial  by  jury,  though 
by  no  means  perfectly  organized,  is,  in  that  country,  justly  considered 
as  the  best  security  for  the  liberties  of  the  people  ;  and  why,  though 
they  behold  with  a  shameful  indifference,  a  domineering  aristocracy, 
corrupting  their  legislative,  and  encroaching  on  their  executive  branches 
of  government,  they  yet  boast,  with  reason,  of  the  independence  of  their 
judiciary,  ennobled  as  it  is  with  the  trial  by  jury.  We  have  received 
this  invaluable  inheritance  from  our  British  ancestors  :  let  us  defend, 
and  improve,  and  perpetuate  it  ;  not  only  that  we  may  ourselves  en- 
joy its  advantages,  but,  that  if  this,  with  the  principle  of  free  repre- 
sentation in  government,  and  that  admirable  contrivance  for  securing 
personal  liberty,  the  writ  of  habeas  corpus,  should  chance  to  be  cor- 
rupted or  abolished  in  the  country  from  whence  we  derived  them,  we 
may  return  the  obligation  we  have  received,  by  offering  for  adoption, 


THE  PLAN  OF  A  PENAL  CODE.  13 

to  a  regenerated  state,  those  great  institutions  of  freedom  established  by 
ancestors  common  to  them  and  the  race  of  freemen,  by  whose  labours, 
experience  and  valour,  they  will  have  been  perfected  and  preserved. 

In  France,  this  mode  of  trial  was  introduced  during  the  revolution, 
but  was  afterwards  found  inconvenient  to  the  exercise  of  the  imperial 
power.  By  the  code  of  1808,  it  was  so  modified  as  to  leave  scarcely  a 
resemblance  of  its  origin  ;  it  became  a  select  corps  of  sixty  men,  chosen 
by  the  prefect,  who  held  his  office  at  the  will  of  the  crown.  It  was 
reduced  by  successive  operations  (all  by  the  king's  officers)  to  twenty- 
one  ;  out  of  which  the  accused  had  the  illusory  privilege  of  excepting  to 
nine  ;  and  the  votes  of  the  majority  of  the  remaining  twelve,  combined, 
in  no  very  intelligible  manner,  with  the  opinions  of  the  bench,  decided 
his  fate.  Yet  even  under  this  vicious  constitution,  juries  have  some- 
times been  found  to  interpose  between  executive  power  and  its  victims ; 
and  the  very  name  (for  it  is,  in  fact,  very  little  more)  of  the  trial  by 
jury,  is  now,  under  the  monarchy  of  France,  the  object  of  royal  jealousy 
and  fear. 

With  these  examples  before  us,  ought  we  not,  in  framing  a  new  code, 
to  impress  on  the  minds  of  our  constituents  a  sacred  attachment  to  this 
institution?  So  venerable  for  its  antiquity!  So  wise  in  theory!  So 
efficient  in  practice!  So  simple  in  form!  In  substance  so  well-adapted 
to  its  end!  The  terror  of  guilt,  the  best  hope  of  innocence!  Venerated 
by  the  friends  of  freedom,  detested  and  abhorred  by  its  foes!  Can  we 
too  religiously  guard  this  sanctuary  into  which  liberty  may  retire  in 
times  (God  long  avert  them  from  our  country  !)  when  corruption  may 
pervert,  and  factipn  overturn,  every  other  institution  framed  for  its 
protection.  Even  in  such  times,  the  nation  need  not  despair.  A  re- 
generating spirit  will  never  be  extinct,  while  this  admirable  contrivance 
for  its  preservation  exists;  fostered  in  this  retreat,  it  will  gradually 
gather  strength,  and  in  due  time  will  walk  abroad  in  its  majesty  over 
the  land,  arrest  the  progress  of  arbitrary  power,  strike  off  the  shackles 
which  it  has  imposed,  and  restore  the  blessings  of  freedom  to  a  peo- 
ple still  conscious  of  their  right  to  enjoy  them. 

If  these  reflections  should  chance  to  be  seen  in  the  other  states^  they 
will  be  considered  as  a  trite  repetition  of  acknowledged  truths:  here, 
I  have  some  reason  to  apprehend  they  will  be  thought  problematical  as- 
sertions. But  whatever  may  be  their  effect,  I  should,  with  my  ideas 
of  their  importance,  have  been  guilty  of  a  dereliction  of  duty,  had  I 
failed  to  present  them.  All,  however,  I  think  on  the  subject,  more 
than  any  language  at  my  command  can  express,  is  contained  in  a  single 
felicitous  sentence,  written  by  a  man  as  eminent  for  learning  and  ge- 
nius, as  he  is  admired  for  the  purity  of  his  principles,  and  his  attach- 
ment to  the  institutions  of  freedom — speaking  of  jurors,  he  calls  them — 

"Twelve  invisible  judges,  whom  the  eye  of  the  corruptor  cannot 
see,  and  the  influence  of  the  powerful  cannot  reach,  for  they  are  no 
where  to  be  found,  until  the  moment  when  the  balance  of  justice  being 
placed  in  their  hands,  they  hear,  weigh,  determine,  pronounce,  and  imme- 
diately disappear,  and  are  lost  in  the  crowd  of  their  fellow-citizens."* 

The  other  provisions  of  this  book  either  require  no  particular  elu- 
cidation, or  will  receive  it  when  the  work  is  presented  for  adoption. 

*Duponceau's  address  at  the  opening  of  the  law  academy  at  Philadelphia. 


14  REPORT  ON 

It  may,  however,  be  proper  to  notice  a  change  which  is  proposed  in 
the  law  of  principals  and  accessaries.  As  it  now  stands,  two  species 
of  offenders  are  designated  by  this  general  name;  distinguished  by  an 
awkward  periphrase,  into  "  accessaries  before  the  fact"  and  "  accessaries 
after  the  fact."  As  there  is  scarcely  any  feature  in  common  between 
the  offences  designated  by  these  two  denominations,  I  have  taken  away 
the  general  appellation,  and  called  the  first  an  accomplice,  leaving  the 
description  of  accessary  exclusively  to  the  second.  In  fact,  how  can 
the  odious  offence  of  plotting  a  crime,  and  instigating  another  to  perform 
that  which  the  contriver  has  not  courage  himself  to  execute  ;  how  can 
this  be  assimilated  to  the  act  of  relieving  a  repentant  and  supplicant 
offender,  who  invokes  our  pity,  and  relies  on  our  generosity  ?  An  act, 
which,  though  justice  may  censure,  humanity  cannot  always  condemn. 
The  first  class  now  includes  some  acts  which  are  so  much  identified 
with  those  which  constitute  the  offence,  that  it  was  thought  more  sim- 
ple, as  well  more  just,  to  arrange  them  under  the  same  head,  and  by 
destroying  useless  distinctions,  greatly  restrict  the  number  of  crimes 
of  complicity. 

Under  the  second  head,  our  law  now  calls  for  the  punishment  of 
acts,  which,  if  not  strictly  virtues,  are  certainly  too  nearly  allied  to 
them  to  be  designated  as  crimes.  The  ferocious  legislation  which  first 
enacted  this  law,  demands  (and  sometimes  under  the  penalty  of  the  most 
cruel  death)  the  sacrifice  of  all  the  feelings  of  nature,  of  all  the  sentiments 
of  humanity;  breaks  the  ties  of  gratitude  and  honour;  makes  obedience  to 
the  law  to  consist  in  a  dereliction  of  every  principle  that  gives  dignity  to 
man,  and  leaves  the  unfortunate  wretch,  who  has  himself  been  guilty  of 
no  offence,  to  decide  between  a  life  of  infamy  and  self-reproach,  or  a  death 
of  dishonour.  Dreadful  as  this  picture  is,  the  original  is  found  in  the  law 
of  accessaries  after  the  fact.  If  the  father  commit  treason,  the  son  must 
abandon,  or  deliver  him  up  to  the  executioner.  If  the  son  be  guilty 
of  a  crime,  the  stern  dictates  of  our  law  require,  that  his  parent,  that 
the  very  mother  who  bore  him,  that  his  sisters  and  brothers,  the  com- 
panions of  his  infancy,  should  expel  nature  from  their  hearts,  and  hu- 
manity from  their  feelings;  that  they  should  barbarously  discover  his 
retreat,  or  with  inhuman  apathy,  abandon  him  to  his  fate.  The  hus- 
band is  even  required  to  betray  his  wife,  the  mother  of  his  children  ; 
every  tie  of  nature  or  affection  is  to  be  broken,  and  men  are  required 
to  be  faithless,  treacherous,  unnatural  and  cruel,  in  order  to  prove  that 
they  are  good  citizens,  and  worthy  members  of  society.  This  is  one 
instance,  and  we  shall  see  others,  of  the  danger  of  indiscreetly  adopt- 
ing, as  a  divine  precept  applicable  to  all  nations,  those  rules  which 
were  laid  down  for  a  particular  people,  in  a  remote  and  barbarous  age. 
The  provisions  now  under  consideration,  evidently  have  their  origin 
in  the  Jewish  law  ;  that,  however,  went  somewhat  further  ;  it  required 
the  person  connusant  of  a  crime  committed  by  a  relation,  not  only  to 
perform  the  part  of  informer,  but  executioner  also.  "If  thy  brother, 
the  son  of  thy  mother  ;  or  thy  son,  or  thy  daughter,  or  the  wife  of  thy 
bosom,  or  thy  friend,  which  is  as  thine  own  soul,  entice  thee  secretly, 
saying,  let  us  go  and  serve  other  gods,  thou  shalt  not  consent.  .  .  .  Nei- 
ther shall  thine  eye  pity  him ....  neither  shalt  thou  conceal  him  ; .  . .  . 
thou  shalt  surely  kill  him  ; .  .  .  .  thou  shalt  stone  him  with  stones." 
Almighty  power  might  counteract,  for  its  own  purposes,  the  feelings 


THE  PLAN  OF  A  PENAL  CODE.  15 

of  humanity,  but  a  mortal  legislator  should  not  presume  to  do  it;  and 
in  modern  times,  such  laws  are  too  repugnant  to  our  feelings  to  be  fre- 
quently executed;  but  that  they  may  never  be  enforced,  they  should 
be  expunged  from  every  code  which  they  disgrace.  The  project  pre- 
sented to  you,  does  this,  with  respect  to  ours.  To  put  an  end  to  that 
strife,  which  such  provisions  create  in  the  minds  of  jurors,  between 
their  best  feelings  and  their  duty,  their  humanity  and  their  oath;  no 
relation  to  the  principal  offender,  in  the  ascending  or  descending  line, 
or  in  the  collateral,  as  far  as  the  first  degree:  no  person  united  to  him 
by  marriage,  or  owing  obedience  to  him  as  a  servant,  can  be  punished 
as  an  accessary.  Cases  of  other  particular  ties  of  gratitude  or  friend- 
ship cannot  be  distinguished  by  law:  they  must  be  left  for  the  consider- 
ation of  the  pardoning  power. 

I  proceed  to  the  plan  of  the  third  book,  the  most  important  in  the 
work:  it  enumerates,  classes,  and  defines  all  offences. 

All  contraventions  of  penal  law  are  denominated  by  the  general 
term,  offences.  Some  division  was  necessary  to  distinguish  between 
those  of  a  greater  and  others  of  a. less  degree  of  guilt.  No  scale  could 
be  found  for  this  measure,  so  proper  as  the  injury  done  to  society  by  any 
given  act ;  and  as  the  punishment  is  intended  to  be  proportioned  to  the 
injury,  the  nature  of  the  punishment  was  fixed  on,  as  the  boundary 
between  smaller  offences,  which  are  designated  as  misdemeanors,  and 
those  of  a  more  serious  nature  which  are  called  crimes.  The  last  being 
such  as  are  punished  by  hard  labour,  seclusion,  or  privation  of  civil 
rights,  in  addition  to  imprisonment.  All  other  offences  are  called 
misdemeanors.  In  the  progress  of  the  work,  I  have  felt  some  want  of 
another  denomination,  to  distinguish  the  lighter  offences,  which  are 
punishable  by  pecuniary  fines  only,  from  those  which  are  called  in  the 
English  law  by  the  vague  appellation  of  high  misdemeanors ;  and 
which  are  punished  as  well  by  bodily  restraint  as  by  fine.  It  is  poss- 
ible that  in  the  end,  something  like  the  contravention  of  the  French 
law  may  be  adopted  :  but  I  am  at  present  inclined  to  think,  that  the 
single  division  I  have  mentioned  will  be  sufficient. 

This  first  division  can  be  of  no  utility  in  the  definition  of  offences, 
and  therefore  will  find  no  place  in  that  part  of  the  work;  it  is  adopted, 
principally,  from  the  necessity  of  such  a  distinction  in  the  general  pro- 
visions, and  will  also  be  found  of  use  in  common  parlance,  and  for  the 
purpose  of  reference. 

Offences,  including  both  crimes  and  misdemeanors,  are  next  classed, 
in  relation  to  the  object  affected  by  them,  into  public  and  private. 

Here  again  the  law  which  divides  the  two  classes  must,  in  some 
measure,  be  arbitrary,  for  scarcely  any  public  offence  can  be  committed 
that  does  not  injure  an  individual;  and  most  of  the  outrages  offered  to 
individuals,  in  some  sort,  affect  the  public  tranquillity;  but  the  order  of 
the  work  requires  the  division,  and  it  is  made  with  as  close  a  view  as 
could  be  given  to  the  nature  of  the  different  offences,  as  follows: 

I.  Under  the  head  of  public  offences  are  ranked: 

Those  which  affect  the  sovereignty  of  the  state,  in  its  legislative, 
executive,  or  judiciary  power. 

The  public  tranquillity  ;  the  revenue  of  the  state  ;  the  right  of 
suffrage ;  the  public  records ;  the  current  coin ;  the  commerce, 
manufactures,  and  trade  of  the  country  ;  the  freedom  of  the  press  ; 
tlie  public  health  ;  the  public  property  ;  the  public  roads,  levees, 


16  REPORT  ON 

bridges,  navigable  waters,  and  other  property  held  by  the  sovereign 
power,  for  the  common  use  of  the  people  ;  those  which  prevent  or 
restrain  the  free  exercise  of  religion,  or  which  corrupt  the  morals  of 
the  people. 

II.  Private  offences  are  those  which  affect  individuals  and  injure 
them 

In  their  reputation ;  their  persons ;  their  political  privileges ; 
their  civil  rights  ;  their  profession  or  trade  ;  their  property,  or 
the  means  of  acquiring  or  preserving  it. 

Under  one  or  other  of  these  heads,  it  is  believed  that  all  such  acts  or 
omissions  can  be  arranged,  as  it  may  be  proper  to  constitute  offences ; 
unless,  indeed,  those  which  relate  to  societies  or  corporate  bodies  may 
be  found,  when  they  come  to  be  defined,  not  properly  assignable  to  any 
one  of  these  divisions  ;  in  which  case,  a  separate  class  will  be  created 
for  them  and  other  miscellaneous  offences.  It  is  obvious,  that  the  classi- 
fication cannot  be  complete  until  all  the  offences  are  enumerated  and 
defined,  and,  therefore,  this  sketch  is  submitted  more  to  give  a  general 
idea  of  the  method,  than  as  a  complete  plan. 

Melancholy,  misfortune  and  despair,  sometimes  urge  the  unhappy  to 
an  act,  which,  by  most  criminal  codes,  is  considered  as  an  offence  of  the 
deepest  die  ;  and  which,  being  directed  principally  against  the  offender 
himself,  would  have  required  a  separate  division,  if  it  had  been  ad- 
mitted in  this  code.  It  has  not;  because  its  insertion  would  be  con- 
trary to  some  of  the  fundamental  principles  which  have  been  laid  down 
for  framing  it. 

Suicide  can  never  be  punished  but  by  making  the  penalty  (whether 
it  be  forfeiture  or  disgrace)  fall  exclusively  upon  the  innocent.  The 
English  mangle  the  remains  of  the  dead.  The  inanimate  body  feels 
neither  the  ignominy  nor  pain.  The  mind  of  the  innocent  survivor 
alone  is  lacerated  by  this  useless  and  savage  butchery,  and  the  dis- 
grace of  the  execution  is  felt  exclusively  by  him,  although  it  ought  to 
fall  on  the  laws  which  inflict  it.  The  father,  by  a  rash  act  of  self-de- 
struction, deprives  his  family  of  the  support  he  ought  to  afford  them  ; 
and  the  law  completes  the  work  of  ruin,  by  harrowing  up  their  feel- 
ings ;  covering  them  with  disgrace  ;  and  depriving  them  by  forfeiture 
of  their  means  of  subsistence. 

Vengeance,  we  have  said,  is  unknown  to  our  law  ;  it  cannot,  there- 
fore, pursue  the  living  offender,  much  less,  with  impotent  rage  should 
it  pounce,  like  a  vulture,  on 'the  body  of  the  dead,  to  avenge  a  crime 
which  the  offender  can  never  repeat,  and  which  certainly  holds  out  no 
lure  for  imitation :  the  innocent,  we  have  assumed,  should  never  be 
involved  in  the  punishment  inflicted  on  the  guilty.  But  here,  not  only 
the  innocent,  but  those. most  injured  by  the  crime,  are  exclusively  the 
sufferers  by  the  punishment.  We  have  established  as  a  maxim,  that 
the  sole  end  of  punishment  is  to  prevent  the  commission  of  crimes  ; 
the  only  means  of  effecting  this,  in  the  present  case,  must  be  by  the 
force  of  example  ;  but  what  punishment  can  be  devised  to  deter  him, 
whose  very  crime  consists  in  the  infliction  upon  himself  of  the  greafest 
penalty  your  law  can  denounce?  Unless,  therefore,  you  use  the  hold 
which  natural  affection  gives  you  on  his  feelings,  and  restrain  him  by 
the  fear  of  the  disgrace  and  ruin  with  which  you  threaten  his  family, 
your  law  has  no  effective  sanction  ;  but  humanity  forbids  this  ;  the  le- 
gislator that  threatens  it,  is  guilty  of  the  most  refined  tyranny.  If  be 


THE  PLAN  OF  A  PENAL  CODE.  17 

carries  it  into  execution,  he  is  a  savage.  It  is  either  a  vain  threat,  and 
therefore  cannot  operate,  or  if  executed  with  an  ill-directed  rage, 
strikes  the  innocent  because  the  guilty  is  beyond  its  reach. 

Another  species  of  offence  is  also  omitted,  though  it  figures  in  every 
code,  from  the  Mosaic  downward,  to  those  of  our  days,  and  generally 
with  capital  punishments  denounced  against  its  commission  ;  yet  I  have 
not  polluted  the  pages  of  the  law  which  I  am  preparing  for  you  by 
mentioning  it ;  for  several  reasons  : 

First.  Because,  although  it  certainly  prevailed  among  most  of  the 
ancient  nations,  and  is  said  to  be  frequently  committed  in  some  of  the 
modern,  yet,  I  think,  in  all  these  cases  it  may  be  traced  to  causes  and  in- 
stitutions  peculiar  to  the  people  where  it  has  been  known,  but  which  can- 
not operate  here;  and  that  the  repugnance,  disgust,  and  even  horror, 
which  the  very  idea  inspires,  will  be  a  sufficient  security  that  it  can 
never  become  a  prevalent  one  in  our  country. 

Secondly.  Because,  as  every  crime  must  be  defined,  the  details  of 
such  a  definition  would  inflict  a  lasting  wound  on  the  morals  of  the 
people.  Your  criminal  code  is  no  longer  to  be  the  study  of  a  select 
few:  it  is  not  the  design  of  the  framers  that  it  should  be  exclusively 
the  study  even  of  our  own  sex;  and  it  is  particularly  desirable,  that 
it  should  become  a  branch  of  early  education  for  our  youth.  The 
shock  which  such  a  chapter  must  give  to  their  pudicity,  the  familiarity 
their  minds  must  acquire  with  the  most  disgusting  images,  would,  it  is 
firmly  believed,  be  most  injurious  in  its  effects:  and  if  there  was  no 
other  objection,  ought  to  make  us  pause  before  we  submitted  such  de- 
tails to  public  inspection. 

Thirdly.  It  is  an  offence  necessarily  difficult  of  proof,  and  must 
generally  be  established  by  the  evidence  of  those  who  are  sufficiently 
base  and  corrupt  to  have  participated  in  the  offence.  Hence,  persons 
shameless  and  depraved  enough  to  incur  this  disgrace,  have  made  it  the 
engine  of  extortion  against  the  innocent,  by  threatening  them  with  a 
denunciation  for  this  crime,  and  they  were  generally  successful:  be- 
cause, against  such  an  accusation,  it  was  known  that  the  infamy  of  the 
accuser  furnished  no  sure  defence. 

My  last  reason  for  the  omission  was,  that  as  all  our  criminal  pro- 
ceedings must  be  public,  a  single  trial  of  this  nature  would  do  more  in- 
jury to  the  morals  of  the  people  than  the  secret,  and  therefore  always 
uncertain,  commission  of  the  offence.  I  was  not  a  little  influenced,  also, 
by  reflecting  on  the  probability,  that  the  innocent  might  suffer,  either 
by  malicious  combinations  of  perjured  witnesses,  in  a  case  so  difficult 
of  defence,  or  by  the  ready  credit  that  would  be  given  to  circumstan- 
tial evidence,  where  direct  proof  is  not  easily  procured,  and  where, 
from  the  nature  of  the  crime,  a  prejudice  is- created  by  the  very  accu- 
sation. 

In  designating  the  acts  which  should  be  declared  offences,  I  could 
not  confine  the  selection  to  such  as  were  already  prevalent  in  this  coun- 
try: this  would  have  required,  in  future,  too  frequent  a  recurrence  to 
the  work  of  amendment ;  nor  could  I,  with  propriety,  include  all  the 
long  list  of  offences  which  have  been  enumerated  in  the  codes  of  other 
countries.  A  middle  course  has  been  pursued,  embracing  such  prohi- 
bitions only  as  apply  to  acts  which  the  present,  and  probably  the  future 
state  of  society,  in  our  country,  may  require  to  be  repressed. 

The  penal  laws  of  most  countries  have  an  ample  department  allotted 
C 


18  REPORT  ON 

to  offences  against  religion,  because  most  countries  have  an  established 
religion  which  must  be  supported  in  its  superiority  by  the  penalties  of 
temporal  laws.  Here,  where  no  pre-eminence  is  acknowledged,  but 
such  as  is  acquired  by  persuasion  and  conviction  of  the  truth;  where 
all  modes  of  faith,  all  forms  of  worship  are  equal  in  the  eye  of  the  lawj 
and  it  is  left  to  that  of  omniscience  to  discover  which  is  the  one  most 
pleasing  in  its  sight;  here,  the  task  of  legislation,  on  this  head,  is  simple, 
and  easily  performed.  It  consists  in  a  few  provisions  for  scrupulously 
preserving  this  equality,  and  for  punishing  every  species  of  disturbance 
to  the  exercise  of  all  religious  rites,  while  they  do  not  interfere  with 
public  tranquillity:  these  are  accordingly  all  that  will  be  found  in  the 
code. 

After  thus  accounting  for  the  omissions  I  have  remarked,  it  may  be 
proper  to  notice  a  new  class,  inserted  in  the  enumeration  of  public  of- 
fences under  the  head  of  offences  against  the  freedom  of  the  press: 
this  is  new  in  the  legislation  of  those  governments  where  the  liberty 
of  the  press  is  best  established  and  most  prized.  It  has  generally  been 
thought  a  sufficient  protection  to  declare,  that  no  punishment  should  be 
inflicted  on  those  who  legally  exercise  the  right  of  publishing;  but 
hitherto  no  penalties  have  been  denounced  against  those  who  illegally 
abridge  this  liberty.  Constitutional  provisions  are,  in  our  republics, 
universally  introduced  to  assert  the  right,  but  no  sanction  is  given  to 
the  law.  Yet  do  not  the  soundest  principles  require  it?  If  the  liberty 
of  publishing  be  a  right,  is  it  sufficient  to  say  that  no  one  shall  be  pun- 
ished for  exercising  it  ?  I  have  a  right  to  possess  my  property,  yet 
the  law  does  not  confine  itself  to  a  declaration  that  1  shall  not  be  pun- 
ished for  using  it:  something  more  is  done,  and  it  is  fenced  round  with 
penalties,  imposed  on  those  who  deprive  me  of  its  enjoyment. 

Why  should  there  be  this  difference  in  the  protection  which  the  law 
affords  to  those  different  rights  ?  Not  certainly  because  the  one  in  ques- 
tion is  considered  as  of  small  moment:  every  bill  of  rights  since  the 
art  of  printing  has  been  known,  testifies  how  highly  it  has  been  prized. 
This  anomaly  may,  in  states  governed  by  the  common  law,  be  account- 
ed for  by  the  reflection,  that  every  breach  of  a  constitutional  privilege 
might  there  be  considered  as  a  misdemeanor,  and  punished  as  such,  al- 
though no  penalty  were  contained  in  the  law.  But  here,  where  nothing 
is  an  offence  but  that  which  is  plainly  and  especially  declared  to  be  such 
by  the  letter  of  the  law,  where  we  have  banished  all  constructive  offen- 
ces, here  our  code  would  be  incomplete  without  the  insertion  of  this 
class. 

All  violence  or  menace  of  violence,  or  any  other  of  the  means  which 
are  enumerated  in  the  code;  all  exercise  of  official  influence  or  author- 
ity which  may  abridge  this  valuable  privilege,  is  declared  to  be  an  of- 
fence. Nay,  the  project  which  will  be  presented  to  you  goes  further. 
And  considering  the  constitutional  provision  as  paramount  to  any  act 
of  ordinary  legislation,  and  consequently  that  all  laws  in  derogation  of 
it  are  void;  it  declares  all  those  guilty  of  an  offence  who  shall  execute 
any  law  abridging  or  restraining  the  liberty  of  the  press,  contrary  to 
the  privilege  secured  by  the  constitution.  It  may  be  said  that  this  is 
nugatory,  because'the  same  authority  which  makes  the  code  may  re- 
peal it,  and  that  the  legislature  which  could  so  far  forget  their  duty  as  to 
violate  the  constitution,  would  certainly  abrogate  the  law  by  which 


THE  PLAN  OF  A  PENAL  CODE.  19 

it  was  made  punishable.  To  this  I  answer,  that  the  consequence  does 
not  follow.  Attacks  on  constitutional  rights  are  seldom  openly  or  di- 
rectly made;  the  repeal  of  this  part  of  the  code  would  be  an  acknow- 
ledgement on  the  part  of  those  who  procured  it,  that  they  were  hostile 
to  the  right  secured  by  the  constitution.  This,  in  a  popular  government, 
no  representative  would  dare  to  avow;  and  however  desirous  a  faction 
might  be  to  get  rid  of  this  formidable  censor  of  their  principles,  opera- 
tions and  plans,  they  would  never  dare  openly  to  declare  their  fears. 
But  by  means  of  these  provisions  in  your  code,  all  those  insidious  at- 
tempts by  which  valuable  privileges  are  generally  destroyed,  will  be 
prevented;  the  people  will  be  put  on  their  guard  against  them;  and  the 
judiciary  will  be  armed  with  legal  authority  for  their  punishment  and 
suppression. 

I  wish  to  have  it  distinctly  understood,  that  the  preceding  division 
and  classification  of  offences  is  introduced  to  give  a  method  to  the 
work,  which  will  aid  the  memory;  render  reference  more  easy;  enable 
the  student  to  comprehend  the  whole  plan,  and  future  legislators  to  ap- 
ply amendments  and  ameliorations  with  greater  effect.  But  that  they 
are  not  intended,  in  any  manner,  to  have  a  constructive  operation. 
Each  offence  is  to  be  construed  by  the  definition  which  is  given  of  it, 
not  by  the  division  or  class  in  which  it  is  placed.  The  mixed  nature 
of  many  offences,  and  the  impossibility  of  making  any  precise  line  of 
demarcation,  even  between  the  two  great  divisions,  render  this  remark 
necessary. 

After  the  prohibitory  and  mandatory  part  of  the  penal  law,  we  natu- 
rally come  to  consider  its  sanction  or  the  means  of  securing  obedience 
to  its  provisions. 

The  first  of  these  are  the  precautionary  measures  to  prevent  the  com- 
mission of  apprehended  offences,  or  to  arrest  the  completion  of  those 
which  are  begun.  These  are  provided  for,  in  the  fourth  book,  and  do 
not,  very  essentially,  differ  from  those  which  are  known  to  the  Eng- 
lish law. 

In  considering  this  important  branch  of  the  subject,  we  must  refer  to  the 
principles  established  in  the  preliminary  chapter.  If  those  are  right,  the 
law  punishes,  not  to  avenge,  but  to  prevent  crimes  ;  it  effects  this,  first,  by 
deterring  others  by  the  example  of  its  inflictions  on  the  offender  ;  second- 
ly, by  its  effects  on  the  delinquent  himself ;  taking  away,  by  restraint,  his 
power  ;  and  by  reformation,  his  desire  of  repeating  the  offence.  No  pun- 
ishments, greater  than  are  necessary  to  effect  this  work  of  prevention,  let 
us  remember,  ought  to  be  inflicted  ;  and  that  those  which  produce  it,  by 
uniting  reformation  with  example,  are  the  best  adapted  to  the  end.  It 
would  be  disgusting  and  unnecessary  to  pass  in  review  all  the  modes  of 
punishment  which  have,  even  in  modern  times,  been  used,  rather,  it 
would  seem,  to  gratify  vengeance,  than  to  lessen  the  number  of  offences. 
A  spirit  of  enlightened  legislation,  taught  by  Montesquieu,  Beccaria, 
Eden,  and  others;  names  dear  to  humanity!  has  banished  some  of  the 
most  atrocious  from  the  codes  of  Europe.  But  it  has  happened,  in 
this  branch  of  jurisprudence,  as  it  has  in  most  other  departments  of 
science,  that  long  after  the  great  principles  are  generally  acknowledged, 
a  diversity  of  opinion  exists  on  their  application  to  particular  subjects. 
Thus,  although  the  dislocation  of  the  joints  is  no  longer  considered  as 
the  best  mode  of  ascertaining  innocence  or  discovering  guilt;  although 
offences  against  the  deity  are  no  longer  expiated  by  the  burning  faggot; 


90  REPORT  OX 

or  those  against  the  majesty  of  kings,  avenged  by  the  hot  pincers,  and 
the  rack,  and  the  wheel;  still  many  other  modes  of  punishment  have 
their  advocates,  which,  if  not  equally  cruel,  are  quite  as  inconsistent 
with  the  true  maxims  of  penal  law;  it  may,  therefore,  be  proper  to  pass 
some  of  them  in  review. 

They  may  be  reduced  to  these:  banishment ;  deportation ;  simple  im- 
prisonment; imprisonment  in  chains ;  confiscation  of  property;  exposure 
to  public  derision  ;  labour  on  public  works ;  mutilation  and  other  indel- 
ible marks  of  disgrace ;  stripes,  or  the  infliction  of  other  bodily  pain ; 
death. 

Banishment,  even  if  it  were  an  efficient  remedy,  can  hardly,  I  think, 
be  thought  consistent  with  the  duties  which  one  nation  owes  to  ano- 
ther. The  convict  who  is  forced  from  one  country,  must  take  refuge 
in  another;  and  wherever  he  goes,  he  carries  with  him  his  disposition 
to  break  the  laws  and  corrupt  the  morals  of  the  country.  The  same 
crimes  which  make  him  unfit  to  reside  in  his  own,  render  him  mis- 
chievous to  that  which  he  chooses  for  his  retreat.  Every  nation,  then, 
would  have  a  right  to  complain  of  laws  that  made  their  territories  the 
retreat  of  banditti,  and  other  malefactors  of  their  neighbours.  Each, 
at  least,  would  have  a  right  to  refuse  their  entrance.  If  all  do  it,  then 
the  punishment  cannot  be  inflicted;  or  must  be  commuted  into  that 
which  is  denounced  against  those  who  return.  If  no  laws  are  made  to 
expel  them,  or  guard  against  their  entrance,  the  favour  must  be  reci- 
procal, and  each  nation  would  be  bound  to  receive  from  its  neighbour 
a  number  of  foreign  rogues,  equal  to  that  of  the  domestic  villains  they 
send  out.  The  Romans,  who  commanded  the  civilized  world,  might 
employ  this  punishment  with  effect  In  modern  times,  it  is  only  used 
(and  that  rarely)  for  state  offences,  and  then  it  is  generally  dangerous; 
because  the  man  banished  for  political  crimes,  has  frequently  the  power 
of  doing  more  extensive  mischief  abroad  than  at  home.  It  is  also  a 
very  inefficient  remedy;  to  many  it  would  have  no  terrors,  and  those 
upon  whose  love  of  country  it  might  operate  as  a  punishment,  could 
find  many  means  of  evading  it  by  an  undiscovered  return. 

Deportation,  or  rather  relegation,  is  more  efficient,  because  return 
is  more  difficult  than  from  simple  banishment  It  also  operates  favoura- 
bly sometimes,  by  producing  reformation,  and  while  enforced,  effectu- 
ally prevents  a  repetition  of  the  offence  ;  at  least  on  the  society  where 
it  was  first  committed.  But  its  effect,  as  an  example,  is  nearly  lost, 
because  the  culprit  himself  scarcely  thinks  it  a  punishment ;  and  because 
the  distance  causes  both  him  and  his  crime  to  be  forgotten  as  completely 
as  if  be  was  removed  by  death;  and  its  practical  operation  in  England, 
where  it  has  been  long  tried  under  various  forms,  does  not  warrant  the 
conclusion,  that  it  ought  to  be  adopted  here.* 

The  legislature  of  Pennsylvania  have  received,  very  favourably,  a 
plan  presented  by  Dr  Mease,  recommending  this  mode  of  punishment; 
he  has  sent  me  a  copy  of  his  papers,  which  are  at  the  disposal  of  the 


*  A  rery  respectable  witaeat,  erminrd  before  the  home  of  eoBnoos,  say«,  "as  to  fans. 
Biititiia,  I,  with  deference,  think  it  ought  not  to  be  adopted,  except  for  incorrigible  offenders, 
and  thea  it  ought  to  be  far  fife ;  if  it  is  for  sevea  jean,  the  BoreUy  of  the  thing,  and  the 

eoBcfles  offenders  to  it,  so  that,  in  fact, 


they  tummtit  it  oo  paahhanat,  ud  when  Ibis  ttmUntt  M  paawtd  on  men,  they  frequently 
cay,  Ouutk  you,  my  lord." 


THE  PLAN  OF  A  PENAL  CODE.  21 

general  assembly:  they  are  written  with  ingenuity,  but  under  the  cir- 
cumstances in  which  this  state  is  placed,  I  cannot  propose  his  scheme 
as  either  a  practicable  or  an  advisable  mode  of  disposing  of  convicts. 

Simple  imprisonment  has  obvious  defects;  as  a  corrective,  it  is  nearly 
the  worst  that  could  be  applied.  If  solitary,  it  is,  for  most  offences, 
too  severe.  If  it  be  not  solitary,  it  becomes  a  school  for  vice  and  every 
kind  of  corruption.  The  want  of  employment,  even  when  men  are  at 
liberty,  leads  them  to  evil  associations,  and  the  proverb  does  not  much 
exaggerate,  which  calls  it  the  root  of  all  evil.  But  when  to  idleness  is 
joined  an  association  with  all  that  is  most  profligate  and  unprincipled, 
it  may  be  easily  imagined  how  quick  must  be  the  progress  from  inno- 
cence to  vice,  from  vice  to  crime.  The  band  of  the  guilty  thus  collected, 
acquire  a  knowledge  of  each  other's  capacity  in  the  commission  of  of- 
fences; they  feel  their  strength,  they  recruit  their  numbers,  they  organ- 
ize themselves  for  their  warfare  on  society,  and  come  out  completely 
disciplined  and  arrayed  against  the  laws. 

Imprisonment  in  irons  has  all  the  evils  of  simple  imprisonment,  and 
adds  to  them  that  of  inequality,  and  the  danger  of  arbitrary  imposition. 
The  weight  of  the  chains,  if  regulated  by  law,  must  be  a  torture  to  the 
weak,  while  the  robust  delinquent  will  bear  them  without  pain.  If 
they  are  at  the  discretion  of  the  jailor,  there  can  be  no  better  engine 
for  petty  tyranny  and  extortion. 

Confiscation  of  property  has  few  advocates,  and  ought  to  have  none. 
It  has  every  defect  that  can  attach  to  a  mode  of  punishment,  except 
that  it  is  in  some  degree  remissible;  it  is  unequal,  because  it  forfeits 
for  the  same  offence  the  largest  and  the  smallest  fortune.  It  is  cruel, 
because  it  deprives  numbers  of  the  means  of  subsistence  for  the  fault  of 
one.  It  is  unjust,  for  it  punishes,  without  distinction,  the  innocent  as 
well  as  the  guilty.  It  is  liable  to  the  worst  of  abuses,  because  it  makes 
it  the  interest  of  the  government  to  multiply  convictions.  This  last 
characteristic  is  perhaps  the  reason  why  it  retains  a  place  in  the  penal 
jurisprudence  of  Europe. 

The  next  four  heads  may  be  classed  together:  the  pillory,  stocks, 
and  other  contrivances  for  public  exposure,  labour  in  chains,  and  on 
the  public  works,  indelible  marks  of  disgrace  (always  attended  with 
bodily  pain),  and  the  infliction  of  stripes,  all  are  liable  to  the  same  radi- 
cal objections;  they  all  discard  the  idea  of  reformation;  all  are  unequal, 
and  subject  to  arbitrary  imposition ;  with  the  exception  of  public  labour, 
they  are  all  momentary  in  their  application,  and  when  the  operation  is 
over,  they  impose  a  necessity  on  the  patient,  with  the  alternative  of 
starving,  immediately  to  repeat  his  offence;  he  accordingly,  with  in- 
creased dexterity,  commences  a  new  career;  forms  a  corps  of  similar 
associates  to  prey  upon  society;  seduces  others  by  the  example  of  his 
impunity  in  the  numerous  instances  in  which  he  escapes  detection; 
swells  the  list  of  convictions  in  those  where  his  vigilance  is  defeated, 
and  finally  becomes  a  fit  subject  for  the  grand  remedy — the  punish- 
ment of  death.  I  approached  the  inquiry  into  the  nature  and  effect  of 
this  punishment  with  the  awe  becoming  a  man  who  felt,  most  deeply, 
his  liability  to  err,  and  the  necessity  of  forming  a  correct  opinion  on  a 
point  so  interesting  to  the  justice  of  the  country,  the  life  of  its  citizens, 
and  the  character  of  its  laws.  I  strove  to  clear  my  understanding  from 
all  prejudices  which  education,  or  early  impressions  might  have  created, 
and  lo  produce  a  frame  of  mind  fitted  for  the  investigation  of  truth, 


22  REPORT  ON 

and  the  impartial  examination  of  the  arguments  on  this  great  question. 
For  this  purpose,  I  not  only  consulted  such  writers  on  the  subject  as 
were  within  my  reach,  but  endeavoured  to  procure  a  knowledge  of  the 
practical  effect  of  this  punishment  on  different  crimes  in  the  several 
countries  where  it  is  inflicted.  In  my  situation,  however,  I  could  draw 
but  a  very  limited  advantage  from  either  of  these  sources:  very  few 
books  on  penal  law,  even  those  most  commonly  referred  to,  are  to  be 
found  in  the  scanty  collections  of  this  place,  and  my  failure  in  procur- 
ing information  from  the  other  states,  is  more  to  be  regretted  on  this 
than  any  other  topic  on  which  it  was  requested.  With  these  inade- 
quate means,  but  after  the  best  use  that  my  faculties  would  enable  me 
to  make  of  them;  alter  long  reflection,  and  not  until  I  had  canvassed 
every  argument  that  could  suggest  itself  to  my  mind,  I  came  to  the 
conclusion,  that  the  punishment  of  death  should  find  no  place  in  the 
code  which  you  have  directed  me  to  present.  In  offering  this  result, 
I  feel  a  diffidence,  which  arises,  not  from  any  doubt  of  its  correctness; 
I  entertain  none;  but  from  the  fear  of  being  thought  presumptuous  in 
going  beyond  the  point  of  penal  reform,  at  which  the  wisdom  of  the 
other  states  has  hitherto  thought  proper  to  stop;  .and  from  a  reluctance 
to  offer  my  opinions  in  opposition  to  those  (certainly  more  entitled  to 
respect  than  my  own)  which  still  support  the  propriety  of  this  punish- 
ment for  certain  offences.  On  a  mere  speculative  question,  I  should 
yield  to  this  authority;  but  here  I  could  not  justify  the  confidence  you 
have  reposed  in  me,  were  I  to  give  you  the  opinions  of  others,  no 
matter  how  respectable  they  may  be,  instead  of  those  which  my  best 
judgment  assured  me  were  right. 

The  example  of  the  other  states  is  certainly  entitled  to  great  respect; 
the  greater,  because  all,  without  exception,  still  retain  this  punishment; 
but  this  example  loses  some  of  its  force  when  we  reflect  on  the  slow 
progress  of  all  improvement,  and  on  the  stubborn  principles  of  the 
common  law,  which  have  particularly  retarded  its  advance  in  jurispru- 
dence. 

In  England,  their  parliament  had  been  debating  for  near  a  century 
before  they  would  take  off  capital  punishment  from  two  or  three  cases, 
in  which  every  body  allowed  it  was  manifestly  cruel  and  absurd:  they 
have  retained  it  in  at  least  an  hundred  others  of  the  same  description ;  and 
when  we  reflect  on  these  facts,  and  observe  the  influence  which  the 
prevailing  opinions  of  that  country  have  always  had  on  the  literature 
and  jurisprudence  of  ours,  we  may  account  for  the  several  states  having 
stopped  short  in  the  reform  of  their  penal  law,  without  supposing  them 
to  have  arrived  at  the  point  of  perfection,  beyond  which  it  would  be 
both  unwise  and  presumptuous  to  pass.  .  As  to  the  authority  of  great 
names,  it  loses  much  of  its  force  since  the  mass  of  the  people  have  be- 
gan to  think  for  themselves;  and  since  legislation  is  no  longer  con- 
sidered as  a  trade,  which  none  can  practise  with  success,  but  those 
who  have  been  educated  to  understand  the  mystery;  the  plain  matter 
of  fact,  practical  manner,  in  which  that  business  is  conducted  with  us, 
refers  more  to  experience  of  facts  than  theory  of  reasoning:  more  to 
ideas  of  utility  drawn  from  the  state  of  society,  than  from  the  opinions 
of  authors  on  the  subject.  If  the  argument  were  to  be  carried  by  the 
authority  of  names,  that  of  Beccaria,  were  there  no  other,  would  ensure 
the  victory.  But  reason  alone,  not  precedent  nor  authority,  must 
justify  me  in  proposing  to  the  general  assembly  this  important  change; 


THE  PLAN  OF  A  PENAL  CODE.  23 

reason  alone  can  persuade  them  to  adopt  it.  I  proceed  therefore  to 
develope  the  considerations  which  carried  conviction  to  my  mind,  but 
which  being  perhaps  now  more  feebly  urged  than  they  were  then  felt, 
may  fail  in  producing  the  same  effect  upon  others.  A  great  part  of  my 
task  is  rendered  unnecessary,  by  the  general  acknowledgement,  univer- 
sal, I  may  say,  in  the  United. States,  that  this  punishment  ought  to  be 
abolished  in  all  cases,  excepting  those  of  treason,  murder  and  rape. 
In  some  states  arson  is  included;  and  lately,  since  so  large  a  portion  of 
our  influential  citizens  have  become  bankers,  brokers,  and  dealers  in 
exchange,  a  strong  inclination  has  been  discovered  to  extend  it  to 
forgery,  and  uttering  false  bills  of  exchange.  As  it  is  acknowledged 
then  to  be  an  inadequate  remedy  for  minor  offences,  the  argument  will 
be  restricted  to  an  inquiry,  whether  there  is  any  probability  that  it  will 
be  more  efficient  in  cases  of  greater  importance.  Let  us  have  constantly 
before  us,  when  we  reason  on  this  subject,  the  great  principle,  that  the 
end  of  punishment  is  the  prevention  of  crime.  Death,  indeed,  operates 
this  end  most  effectually,  as  respects  the  delinquent;  but  the  great  ob- 
ject of  inflicting  it  is  the  force  of  the  example  on  others.  If  this  spec- 
tacle of  horror  is  insufficient  to  deter  men  from  the  commission  of  slight 
offences,  what  good  reason  can  be  given  to  persuade  us  that  it  will  have 
this  operation  where  the  crime  is  more  atrocious  ?  Can  we  believe 
that  the  fear  of  a  remote  and  uncertain  death  will  stop  the  traitor  in  the 
intoxicating  moment  of  fancied  victory  over  the  constitution  and  liber- 
ties of  his  country?  While  in  the  proud  confidence  of  success,  he 
defies  heaven  and  earth,  and  commits  his  existence  to  the  chance  of 
arms,  that  the  dread  of  this  punishment  will  "  check  his  pride  ;"  force 
him,  like  some  magic  spell,  to  yield  obedience  to  the  laws,  and  aban- 
don a  course  which,  he  persuades  himself,  makes  a  "  virtue"  of  his 
"ambition."  Will  it  arrest  the  hand  of  the  infuriate  wretch,  who, 
at  a  single  blow,  is  about  to  gratify  the  strongest  passion  of  his  soul  in 
the  destruction  of  his  deadly  enemy  ?  Will  it  turn  aside  the  purpose 
of  the  secret  assassin,  who  meditates  the  removal  of  the  only  obstacle 
to  his  enjoyment  of  wealth  and  honours  ?  Will  it  master  the  strongest 
passions  and  counteract  the  most  powerful  motives,- while  it  is  too  weak 
to  prevent  the  indulgence  of  the  slightest  criminal  inclination  ?  If  this 
be  true,  it  must  be  confessed,  that  it  presents  a  paradox  which  will  be 
found  more  difficult  to  solve,  when  we  reflect  that  great  crimes  are,  for 
the  most  part,  committed  by  men  whose  long  habits  of  guilt  have 
familiarized  them  to  the  idea  of  death  ;  or  to  whom  strong  passions  or 
natural  courage  have  rendered  it,  in  some  measure,  indifferent  ;  and 
that  the  cowardly  poisoner  or  assassin  always  thinks  that  he  has  taken 
such  precautions  as  will  prevent  any  risk  of  discovery.  The  fear  of 
death,  therefore,  will  rarely  deter  from  the  commission  of  great  crimes. 
It  is,  on  the  contrary,  a  remedy  peculiarly  inapplicable  to  those  offences. 
Ambition,  which  usually  inspires  the  crime  of  treason,  soars  above  the 
fear  of  death  ;  avarice,  which  whispers  the  secret  murder,  creeps  below 
it ;  and  the  brutal  debasement  of  the  passion  that  prompts  the  only 
other  crime,  thus  punished  by  our  law,  is  proverbially  blind  to  conse- 
quences, and  regardless  of  obstacles  that  impede  its  gratification — threats 
of  death  will  never  deter  men  who  are  actuated  by  these  passions  ; 
many  of  them  affront  it  in  the  very  commission  of  the  offence,  and 
therefore  readily  incur  the  lesser  risk  of  suffering  it,  in  what  they  think 
the  impossible  event  of  detection.  But  present  other  consequences 


24  REPORT  ON 

more  directly  opposed  to  the  enjoyments  which  were  anticipated  in 
the  commission  of  the  crime,  make  those  consequences  permanent  and 
certain,  and  then,  although  milder,  they  will  be  less  readily  risked  than 
the  momentary  pang  attending  the  loss  of  life  ;  study  the  passions 
which  first  suggested  the  offence,  and  apply  your  punishment  to  mortify 
and  counteract  them.  The  ambitious  man  cannot  bear  the  ordinary 
restraints  of  government — subject  him  to  those  of  a  prison  ;  he  could 
not  endure  the  superiority  of  the  most  dignified  magistrate — force  him 
to  submit  to  the  lowest  officer  of  executive  justice  ;  he  sought,  by  his 
crimes,  a  superiority  above  all  that  was  most  respectable  in  society — 
reduce  him  in  his  punishment  to  a  level  with  the  most  vile  and  abject 
of  mankind.  If  avarice  suggested  the  murder — separate  the  wretch 
for  ever  from  his  hoard  ;  realize  the  fable  of  antiquity  ;  sentence  him, 
from  his  place  of  penitence  and  punishment,  to  see  his  heirs  rioting  on 
his  spoils;  and  the  corroding  reflection  that  others  are  innocently  enjoy- 
ing the  fruits  of  his  crime,  will  be  as  appropriate  a  punishment  in  prac- 
tical as  it  was  feigned  to  be  in  poetical  justice.  The  rapacious  spend- 
thrift robs  to  support  his  extravagance,  and  murders  to  avoid  detec- 
tion; he  exposes  his  life  that  he  may  either  pass  it  in  idleness,  debauche- 
ry and  sensual  enjoyment,  or  lose  it  by  a  momentary  pang — disappoint 
his  profligate  calculation  ;  force  him  to  live,  but  to  live  under  those 
privations  which  he  fears  more  than  death  ;  let  him  be  reduced  to  the 
coarse  diet,  the  hard  lodging,  and  the  incessant  labour  of  a  penitentiary. 

Substitute  these  privations,  which  all  such  offenders  fear,  which  they 
have  all  risked  their  lives  to  avoid;  substitute  these,  to  that  death  which 
has  little  terror  for  men  whose  passions  or  depravity  have  forced  them  to 
plunge  in  guilt,  and  you  establish  a  fitness  in  the  punishment  to  the 
crime  ;  instead  of  a  momentary  spectacle,  you  exhibit  a  lesson,  that  is 
every  day  renewed  ;  and  you  make  the  very  passions  which  caused  the 
offence  the  engines  to  punish  it,  and  prevent  its  repetition. 

Reformation  is  lost  sight  of  in  adopting  this  punishment,  but  ought 
it  to  be  totally  discarded  ?  May  not  even  great  crimes  be  committed 
by  persons  whose  minds  are  not  so  corrupted  as  to  preclude  the  hope 
of  this  effect.  They  are,  sometimes,  produced  by  a  single  error.  Of- 
ten are  the  consequences  of  a  concatenation  of  circumstances  never 
likely  again  to  occur,  and  are  very  frequently  the  effect  of  a  momentary 
hallucination,  which,  though  not  sufficient  to  excuse,  ought  sometimes 
to  palliate  the  guilt ;  yet  the  operation  of  these  several  causes,  the  evi- 
dent gradation  in  the  degrees  of  guilt  which  they  establish,  are  levelled 
before  this  destructive  punishment.  The  man  who,  urged  by  an  irre- 
sistible impulse  of  nature,  sacrifices  the  base  seducer  who  has  destroyed 
his  domestic  happiness  ;  he  who  having  been  calumniated,  insulted 
and  dishonoured,  at  the  risk  of  his  own  life  takes  that  of  the  slanderer; 
are,  in  the  eye  of  this  harsh  law,  equally  deserving  of  death  with  the 
vile  assassin  who  murders  for  hire,  or  poisons  for  revenge  ;  and  the 
youth,  whose  weakness  in  the  commission  of  a  first  offence  has  yielded 
to  the  artful  insinuations  or  overbearing  influence  of  a  veteran  in  vice, 
must  perish  on  the  same  scaffold  with  the  hardened  and  irreclaimable 
instigator  of  his  crime.  It  may  be  said,  that  the  pardoning  power  is 
the  proper  remedy  for  this  evil  ;  but  the  pardoning  power,  in  capital 
cases,  must  be  exercised,  if  at  all,  without  loss  of  time  ;  without  that 
insight  into  character  which  the  penitentiary  system  affords.  It  is 
therefore,  necessarily  liable  to  abuse  ;  and  there  is  this  further  objection 


THE  PLAN  OF  A  PENAL  CODE.  25 

to  its  exercise,  that  it  leaves  no  alternative  between  death  and  entire 
exemption  from  punishment ;  but  in  every  degree  of  crime,  some  pun- 
ishment is  necessary  ;  the  novice,  if  subject  to  no  reclaiming  discipline, 
will  soon  become  a  professor  in  guilt :  but  let  the  corrective  be  judi- 
ciously applied,  and  its  progress  will  discover  whether  he  maybe  again 
trusted  in  society,  or  whether  his  depravity  is  so  rooted  as  to  require 
continued  confinement. 

In  coming  to  a  resolution  on  this  solemn  subject,  we  must  not  forget 
another  principle  we  have  established,  and  I  think  on  the  soundest 
reasons,  that  other  things  being  equal,  that  punishment  should  be  pre- 
ferred, which  gives  us  the  means  of  correcting  any  false  judgment,  to 
which  passion,  indifference,  false  testimony,  or  deceiving  appearances, 
may  have  given  rise.  Error  from  these,  or  other  causes,  is  sometimes 
inevitable,  its  operation  is  instantaneous,  and  its  fatal  effects  in  the  pun- 
ishment of  death,  follow  without  delay  :  but  time  is  required  for  its 
correction  ;  we  retrace  our  steps  with  difficulty  ;  it  is  mortifying  to 
acknowledge  that  we  have  been  unjust,  and  during  the  time  requisite 
for  the  discovery  of  the  truth,  for  its  operation  on  our  unwilling  minds, 
for  the  interposition  of  that  power,  which  alone  can  stop  the  execution 
of  the  law,  its  stroke  falls,  and  the  innocent  victim  dies.  What  would 
not  then  the  jurors  who  convicted  ;  the  judges  who  condemned  ;  the 
mistaken  witness  who  testified  to  his  guilt ;  what  would  not  the  whole 
community  who  saw  his  dying  agonies,  who  heard,  at  that  solemn 
moment,  his  fruitless  asseverations  of  innocence  ;  what  would  they  not 
all  give  to  have  yet  within  their  reach  the  means  of  repairing  the 
wrongs  they  had  witnessed  or  inflicted  ? 

Instances  of  this  kind  are  not  unfrequent ;  many  of  them  are  on  re- 
cord ;  several  have  taken  place  in  our  own  day,  and  a  very  remarkable 
example  which  was  given  but  a  few  years  since,  in  one  of  the  northern 
states,  shows,  in  a  striking  manner,  the  danger  of  those  punishments 
which  cannot  be  recalled  or  compensated,  even  though  the  innocence 
of  the  sufferer  is  rendered  clear  to  demonstration.  A  few  such  instances, 
even  in  a  century,  are  sufficient  to  counteract  the  best  effects  that  could 
be  derived  from  example.  There  is  no  spectacle  that  takes  such  hold 
on  the  feelings  as  that  of  an  innocent  man  suffering  by  an  unjust  sen- 
tence ;  one  such  example  is  remembered,  when  twenty  of  merited 
punishment  are  forgotten  ;  the  best  passions  take  part  against  the  laws, 
and  arraign  their  operation  as  iniquitous  and  inhuman.  This  consider- 
ation alone,  then,  if  there  were  no  others,  would  be  a  most  powerful 
argument  for  the  abolition  of  capital  punishments  ;  but  there  are  others 
no  less  cogent. 

To  see  a  human  being  in  the  full  enjoyment  of  all  the  faculties  of 
his  mind,  and  all  the  energies  of  his  body  ;  his  vital  powers  attacked 
by  no  disease  ;  injured  by  no  accident ;  the  pulse  beating  high  with 
youth  and  health  ;  to  see  him  doomed  by  the  cool  calculation  of  his 
fellow-men  to  certain  destruction,  which  no  courage  can  repel,  no  art 
or  persuasion  avert ;  to  see  a  mortal  distribute  the  most  awful  dispen- 
sations of  the  Deity,  usurp  his  attributes,  and  fix,  by  his  own  decree, 
an  inevitable  limit  to  that  existence  which  Almighty  power  alone  can 
give,  and  which  its  sentence  alone  should  destroy  ;  must  give  rise  to 
solemn  reflections,  which  the  imposing  spectacle  of  a  human  sacrifice 
naturally  produces,  until  its  frequent  recurrence  renders  the  mind  in- 
sensible to  the  impression.  But  in  a  country  where  the  punishment 


26  REPORT  ON 

of  death  is  rarely  inflicted,  this  sensation  operates  in  all  its  force  ;  the 
people  are  always  strongly  excited  by  every  trial  for  a  capital  offence ; 
they  neglect  their  business,  and  crowd  round  the  court ;  the  accused, 
the  witnesses,  the  counsel,  every  thing  connected  with  the  investiga- 
tion becomes  a  matter  of  interest  and  curiosity  ;  when  the  public  mind 
is  screwed  up  to  this  pitch,  it  will  take  a  tone  from  the  circumstances 
of  the  case,  which  will  rarely  be  found  to  accord  with  the  impartiality 
acquired  by  justice. 

If  the  accused  excite  an  interest  from  his  youth,  his  good  character, 
his  connections,  or  even  his  countenance  and  appearance,  the  dreadful 
consequences  of  conviction,  and  that,  too,  in  the  case  of  great  crimes  as 
well  as  minor  offences,  lead  prosecutors  to  relax  their  severity,  wit- 
nesses to  appear  with  reluctance,  jurors  to  acquit  against  evidence,  and 
the  pardoning  power  improperly  to  interpose.  If  the  public  excite- 
ment take  another  turn,  the  consequences  are  worse ;  indignation 
against  the  crime  is  created  into  a  ferocious  thirst  of  vengeance ;  and 
if  the  real  culprit  cannot  be  found,  the  innocent  suffers  on  the  slightest 
presumption  of  guilt ;  when  public  zeal  requires  a  victim,  the  innocent 
lamb  is  laid  on  the  altar,  while  the  scape-goat  is  suffered  to  fly  to  the 
mountain.  This  savage  disposition  increases  with  the  severity  and 
the  frequency  of  capital  inflictions,  so  that  in  atrocious  as  well  as  in 
lighter  offences,  this  species  of  punishment  leads  sometimes  to  the  escape 
of  the  guilty,  often  to  the  conviction  of  the  innocent. 

Whoever  has  at  all  observed  the  course  of  criminal  proceedings, 
must  have  witnessed  what  I  have  just  endeavoured  to  describe  ;  unde- 
served indulgence,  unjust  severity ;  opposite  effects  proceeding  from 
the  same  cause  j  the  unnecessary  harshness  of  the  punishment. 

But  when  no  such  fatal  consequences  are  to  be  the  result,  the  course 
of  justice  is  rarely  influenced  by  passion  or  prejudice.  The  evidence 
is  produced  without  difficulty,  and  given  without  reluctance  ;  it  has  its 
due  effect  on  the  minds  of  jurors,  who  are  under  no  terrors  of  pro- 
nouncing an  irremediable  sentence  :  and  pardons  need  not  be  granted, 
unless  innocence  is  ascertained,  or  reformation  becomes  unequivocal. 

Another  consequence  of  the  infliction  of  death  is,  that  if  frequent  it 
loses  its  effect ;  the  people  become  too  much  familiarized  with  it  to 
consider  it  as  an  example  ;  it  is  changed  into  a  spectacle,  which  must 
frequently  be  repeated  to  satisfy  the  ferocious  taste  it  has  formed.  It 
would  be  extremely  useful  in  legislation,  if  the  true  cause  could  be  dis- 
covered of  this  atrocious  passion  for  witnessing  human  agonies  and 
beholding  the  slaughter  of  human  beings.  It  has  disgraced  the  history 
of  all  nations  ;  in  some  it  gave  rise  to  permanent  institutions,  like  that 
of  the  gladiators  in  Rome  ;  in  others  it  has  shown  itself  like  a  moral 
epidemic,  which  raged  with  a  violence  proportioned  to  the  density  of 
population,  for  a  limited  time,  and  then  yielded  to  the  influence  of 
reason  and  humanity.  Every  people  has  given  us  instances  of  this  de- 
lirium ;  but  the  religious  massacre  of  St  Bartholomew,  and  the  politi- 
cal slaughters  during  the  reign  of  terror  in  France,  exemplify,  in  a 
striking  manner,  the  idea  I  mean  to  convey.  The  history  of  our  own 
country,  young  as  it  is,  is  not  free  from  this  stain.  The  judicial  mur- 
der of  the  wizards  and  witches  of  New  England,  and  of  a  great  num- 
ber of  poor  wretches,  during  what  was  called  the  negro-plot  at  New 
York,  furnish  us  with  domestic  lessons  on  this  subject.  The  human 
sacrifices  which  we  find  in  the  early  history  of  almost  every  nation, 


THE  PLAN  OF  A  PENAL  CODE.  27 

proceeded  from  another  cause,  the  idea  of  vicarious  atonement  for  sins  ; 
but  they  were  attended  with  the  same  heart-hardening  effect.  Human 
sufferings  are  never  beheld,  for  the  first  time,  but  with  aversion,  terror 
and  disgust.  Nature  has  strongly  implanted  this  repugnance  on  our 
minds,  for  the  wisest  purposes  :  but  this  once  conquered,  it  happens  in 
the  intellectual  taste,  as  it  does  in  that  of  the  senses :  in  relation  to 
which  last,  it  is  observed,  that  we  become  most  fond  of  those  enjoy- 
ments which  required,  in  the  beginning,  some  effort  to  overcome  the 
disgust  produced  by  their  first  use  ;  and  that  our  attachment  to  them 
is  in  proportion  to  the  difficulty  which  was  conquered  in  becoming 
familiarized  to  them.  Whatever  may  be  the  cause  of  this  striking  fact, 
in  the  history  of  the  human  mind,  its  effects  ought  to  be  studied  by 
the  legislator  who  desires  to  form  a  wise  and  permanent  system.  If 
the  sight  of  one  capital  execution  creates  an  inhuman  taste  to  behold 
another ;  if  a  curiosity,  satisfied  at  first  with  terror,  increases  with  its 
gratification,  and  becomes  a  passion  by  indulgence,  we  ought  to  be  ex- 
tremely careful  how,  by  sanctioning  the  frequency  of  capital  punish- 
ments, we  lay  the  foundation  for  a  depravity,  the  more  to  be  dreaded, 
because,  in  our  government,  popular  opinion  must  have  the  greatest  in- 
fluence on  all  its  departments,  and  this  vitiated  taste  would  soon  be 
discovered  in  the  decisions  of  our  courts  and  the  verdicts  of  our  juries. 
But  if  this  punishment  be  kept  for  great  occasions,  and  the  people 
are  seldom  treated  with  the  gratification  of  seeing  one  of  their  fellow- 
creatures  expire  by  the  sentence  of  the  law  ;  a  most  singular  effect  is  pro- 
duced ;  the  sufferer,  whatever  be  his  crime,  becomes  a  hero  or  a  saint; 
he  is  the  object  of  public  attention,  curiosity,  admiration,  and  pity. 
Charity  supplies  all  his  wants,  and  religion  proves  her  power,  by  ex- 
hibiting the  outcast  and  murderer,  though  unworthy  to  enjoy  existence 
upon  earth,  yet  purified  from  the  stain  of  his  vices  and  crimes,  con- 
verted by  her  agency  into  an  accepted  candidate  for  the  happiness  of 
heaven  ;  he  is  lifted  above  the  fear  of  death  by  the  exhortations  and 
prayers  of  the  pious  ;  the  converted  sinner  receives  the  tender  atten- 
tions of  respectability,  beauty  and  worth  :  his  prison  becomes  a  place 
of  pilgrimage,  its  tenant,  a  saint  awaiting  the  crown  of  martyrdom  ; 
his  last  looks  are  watched,  with  affectionate  solicitude  ;  his  last  words 
are  carefully  remembered  and  recorded  ;  his  last  agonies  are  beheld 
with  affliction  and  despair  ;  and  after  suffering  the  ignominous  sentence 
of  the  law,  the  body  of  the  culprit,  whose  death  was  infamy,  and  whose 
life  was  crime,  is  attended  respectfully  and  mournfully  to  the  grave, 
by  a  train  that  would  not  have  disgraced  the  obsequies  of  a  patriot  or 
a  hero.  This  sketch,  though  highly  coloured,  is  drawn  from  life  :  the 
inhabitants  of  one  of  the  most  refined  and  wealthy  of  our  state  capitals, 
sat  for  the  picture  ;  and  although  such  exalted  feelings  are  not  always 
excited,  or  are  prudently  repressed,  yet  they  are  found  in  nature,  and 
in  whatever  degree  they  exist,  it  cannot  be  doubted,  that  in  the  same 
proportion,  they  counteract  every  good  effect  that  punishment  is  in- 
tended to  produce.  The  hero  of  such  a  tragedy  can  never  consider 
himself  as  the  actor  of  a  mean  or  ignoble  part ;  nor  can  the  people  view 
in  the  object  of  their  admiration  or  pity,  a  murderer  and  a  robber, 
whom  they  would  have  regarded  with  horror,  if  their  feelings  had  not 
been  injudiciously  enlisted  in  his  favour.  Thus  the  end  of  the  law  is 
defeated,  the  force  of  example  is  totally  lost,  and  the  place  of  execu- 
tion is  converted  into  a  scene  of  triumph  for  the  sufferer,  whose  crime 


28  REPORT  ON  y 

is  wholly  forgotten,  while  his  courage,  resignation,  or  piety,  mark  him 
as  the  martyr,  not  the  guilty  victim,  of  the  laws. 

Where  laws  are  so  directly  at  war  with  the  feelings  of  the  people 
whom  they  govern,  as  this  and  many  other  instances  prove  them  to 
be,  these  laws  can  never  be  wise  or  operative,  and  they  ought  to  be 
abolished. 

Quid  leges  sine  moribus,  vanse  proficiunt?  But  if  laws  unsup- 
ported by  the  morals  of  the  people  are  inefficient,  how  can  we  reason- 
ably expect  that  they  will  have  any  effect  when  they  are  counteracted 
by  moral  feelings  as  well  as  by  ideas  of  religion.  This  is  the  effect  of 
capital  punishments  in  a  country  where  they  are  not  commonly  in- 
flicted. Let  us  now  see  what  is  their  result,  where  they  are  unhappily 
too  frequent. 

In  England,  a  great  portion  of  the  eloquence  and  learning,  and  all 
the  humanity  of  the  nation  are  at  work,  in  an  endeavour,  not  to  abolish 
the  punishment  of  death  (that  proposition  would  be  too  bold  in  a  gov- 
ernment where  reform,  in  any  department,  might  lead  to  revolution 
in  all),  but  to  restrict  it  to  the  more  atrocious  offences.  This  has  pro- 
duced a  parliamentary  inquiry,  in  the  course  of  which  the  reports,  to 
which  I  have  alluded  before,  were  made;  one  of  them  contains  the  ex- 
aminations of  witnesses  before  a  committee  of  the  house  of  commons. 
From  one  of  these,  that  of  a  solicitor  who  had  practised  for  more  than 
twenty  years  in  the  criminal  courts,  I  make  the  following  extracts: 

"In  the  course  of  my  practice,  I  have  found  that  the  punishment  of 
death  has  no  terror  upon  a  common  thief  ;  indeed,  it  is  much  more  the 
subject  of  ridicule  among  them,  than  of  serious  deliberation.  The 
certain  approach  of  an  ignominious  death  does  not  seem  to  operate 
upon  them  ;  for  after  the  warrant  has  come  down,  I  have  seen  them 
treat  it  with  levity.  I  once  saw  a  man,  for  whom  I  had  been  con- 
cerned the  day  before  his  execution,  and  on  offering  him  condolence, 
and  expressing  my  concern  at  his  situation,  he  replied  with  an  air  of 
indifference,  '  players  at  bowls  must  expect  rubbers  ;'  and  this  man  I 
heard  say,  that  it  was  only  a  few  minutes,  a  kick  and  a  struggle,  and 
all  was  over.  The  fate  of  one  set  of  culprits,  in  some  instances,  had 
no  effect,  even  on  those  who  were  next  to  be  reported  for  execution  ; 
they  play  at  ball  and  pass  their  jokes  as  if  nothing  was  the  matter.  I 
have  seen  the  last  separation  of  persons  about  to  be  executed.  There 
was  nothing  of  solemnity  about  it,  and  it  was  more  like  the  parting 
for  a  country  journey,  than  taking  their  last  farewell.  I  mention  these 
things,  to  show  what  little  fear  common  thieves  entertain  of  capital 
punishment  ;  and  that  so  far  from  being  arrested  in  their  wicked  courses 
by  the  distant  possibility  of  its  infliction,  they  are  not  even  intimid- 
ated by  its  certainty." 

Another  of  those  respectable  witnesses  (a  magistrate  of  the  capital) 
being  asked,  whether  he  thought  that  capital  punishment  had  much 
tendency  to  deter  criminals  from  the  commission  of  offences,  answered, 
"  I  do  not.  I  believe  it  is  well  known  to  those  who  are  conversant  with 
criminal  associations  in  this  town,  that  criminals  live  and  act  in  gangs  and 
confederacies,  and  that  the  execution  of  one  or  more  of  their  own  body, 
seldom  has  a  tendency  to  dissolve  the  confederacy,  or  to  deter  the  re- 
maining associates  from  the  continuance  of  their  former  pursuits.  In- 
stances have  occurred  within  my  own  jurisdiction,  to  confirm  me  in 
this  opinion.  During  one  sitting,  as  a  magistrate,  three  persons  were 


THE  PLAN  OF  A  PENAL  CODE.  29 

brought  before  me  for  uttering  forged  notes.  During  the  investigation, 
I  discovered  that  those  notes  were  obtained  from  a  room  in  which  the 
body  of  a  person  named  Wheller  (executed  on  the  preceding  day,  for 
the  same  offence)  then  was  laid,  and  that  the  notes  in  question  were 
delivered  for  circulation  by  a  woman  with  whom  he  had  been  living. 
This  is  (he  adds)  a  strong  case,  but  I  have  no  doubt  that  it  is  but  one 
of  very  many  others." 

The  ordinary  of  Newgate,  a  witness  better  qualified  than  any  other 
to  give  information  on  this  subject,  being  asked,  "  Have  you  made  any 
observations  as  to  the  effect  of  the  sentence  of  death  upon  the  prison- 
ers ?"  answers — "  It  seems  scarcely  to  have  any  effect  upon  them;  the 
generality  of  people  under  sentence  of  death  are  thinking,  or  doing 
rather,  any  thing  than  preparing  for  their  latter  end."  Being  interro- 
gated as  to  the  effect  produced  by  capital  executions  on  the  minds  of 
the  people,  he  answers,  "I  think,  shock  and  horror  at  the  moment, 
upon  the  inexperienced  and  the  young,  but  immediately  after  the  scene 
is  closed,  forgetfulness  altogether  of  it,  leaving  no  impression  on  the 
young  and  inexperienced.  The  old  and  experienced  thief  says,  the 
chances  have  gone  against  the  man  who  has  suffered  ;  that  it  is  of  no 
consequence,  that  it  is  what  was  to  be  expected;  making  no  serious  im- 
pression on  the  mind.  I  have  had  occasion  to  go  into  the  press-yard 
within  an  hour  and  a  half  after  an  execution,  and  I  have  there  found 
them  amusing  themselves,  playing  at  balls  or  marbles,  and  appearing 
precisely  as  if  nothing  had  happened." 

No  colouring  is  necessary  to  heighten  the  effect  of  these  sketches. 
Nothing,  it  appears  to  me,  can  more  fully  prove  the  utter  inutility  of 
this  waste  of  human  life,  its  utter  inefficiency  as  a  punishment,  and  its 
demoralizing  operation  on  the  minds  of  the  people. 

The  want  of  authentic  documents  prevents  me  at  present  from  laying 
before  the  general  assembly  some  facts  which  would  elucidate  the  sub- 
ject, by  examples,  from  the  records  of  criminal  courts  in  the  different 
states.  The  prevalence  of  particular  offences,  as  affected  by  the  changes 
in  their  criminal  laws  ;  the  number  of  commitments,  compared  with 
that  of  convictions;  and  the  effect  which  the  punishment  of  death  has 
on  the  frequency  of  the  crimes  for  which  it  is  inflicted;  accurate  infor- 
mation on  these  heads  would  have  much  facilitated  the  investigation  in 
which  we  are  engaged.  But  although  from  the  causes  which  I  have 
stated,  these  are  not  now  within  our  reach;  there  are  yet  some  facts 
generally  known  on  the  subject,  which  are  not  devoid  of  interest  or 
instruction.  Murder,  in  all  the  states,  is  punished  with  death;  in  most 
of  them  it  is,  except  treason  (which  never  occurred  under  the  state 
laws),  the  only  crime  that  is  so  punished.  If  this  were  the  most  effi- 
cacious penalty  to  prevent  crimes,  this  offence  would  be  the  one  of 
which  we  should  see  the  fewest  instances.  Is  it  so  ?  To  answer  this 
question,  we  must  establish  a  comparison,  not  between  it  and  other 
offences, — that  would  never  lead  us  to  a  true  result;  there  are  some 
crimes  that  are  so  destructive  of  the  very  existence  of  society,  create 
such  universal  alarm,  and  suppose  so  great  a  depravity,  that  the  perpe- 
trator is  always  viewed  with  abhorrence  by  the  whole  community,  and 
public  execration  would  inflict  a  punishment,  even  if  the  laws  were  si- 
lent. The  number  of  such  crimes,  therefore,  whatever  may  be  the 
punishment  assigned  to  them,  must  necessarily  be  fewer,  in  proportion, 
than  those  which  do  not  inspire  the  same  horror,  or  spread  the  same 


30  REPORT  ON 

alarm;  of  this  nature  is  murder;  we  must,  therefore,  look  to  other 
countries,  to  establish  our  point  of  comparison. 

Unfortunately,  the  crime  is  punished  in  the  same  manner  as  it  is 
here,  in  the  only  country  we  have  sufficient  data  to  reason  upon,  and 
therefore  the  result  of  the  inquiry  cannot  be  conclusive;  but  if  in  that 
country  a  number  of  other  offences  are  punished  with  death,  which  do 
not  incur  that  penalty  here,  and  if  those  minor  offences  prevail  in  a  much 
greater  degree  there  than  they  do  here,  where  they  are  not  so  punish- 
ed, while  murder,  and  robbery  with  intent  to  murder  (almost  the  only 
crimes  punished  in  that  manner  here),  be  more  frequently  committed 
in  this  country  than  in  that  which  I  select  for  the  comparison,  then  we 
shall  have  some  reason  to  doubt  the  efficacy  of  this  violent  remedy. 

In  London  and  Middlesex,  for  sixteen  years  ending  in  1818,  thirty- 
five  persons  were  convicted  of  murder,  and  stabbing  with  intent  to 
murder,  which  is  an  average  of  a  fraction  more  than  two  in  a  year.  In 
the  city  of  New  Orleans,  seven  persons  suffered  for  the  same  crime, 
in  the  space  of  the  last  four  years,  which  is  very  little  less  than  the 
same  average;  but  the  population  of  New-Orleans  did  not,  during  the 
period,  amount  to  more  than  35,000,  which  is  to  that  of  Middlesex  and 
London,  in  round  numbers,  as  one  to  twenty-seven;  therefore,  the 
crime  of  murder  was  nearly  twenty-seven  times  as  frequent,  in  propor- 
tion to  numbers,  as  in  London.  Almost  the  same  proportion  holds 
between  the  whole  state  and  England  and  Wales,  in  relation  to  this 
crime;  nineteen  executions  having  taken  place  for  murder,  in  the  last 
seven  years,  in  Louisiana,  and  one  hundred  and  fifty-four  during  the 
seven  years,  ending  in  1818,  in  England  and  Wales.  In  London  and 
Middlesex,  eight  hundred  and  eighty-five  persons  were  convicted  of  for- 
gery and  counterfeiting  in  seven  years,  ending  in  1818.  During  an  equal 
period,  seven  persons  were  convicted  of  the  same  offence  in  the  whole 
state,  which  makes  the  crime  eighteen  times  more  frequent  in  London, 
in  proportion  to  number,  than  it  is  here.  Six  thousand  nine  hundred  and 
seventy-four  convictions  for  larceny  took  place  in  the  same  seven  years 
in  London:  and  for  a  like  period,  in  the  state  of  Louisiana,  one  hun- 
dred, which  is  near  ten  to  one  more  there  than  here,  in  proportion  to 
the  population.  Many  capital  convictions  were  had  there,  for  crimes 
of  which  none  were  committed  here,  and  which,  if  they  had  been, 
would  have  been  punished  only  by  imprisonment  at  hard  labour.  I 
well  know  that  the  state  of  society  in  the  two  countries,  the  degree 
of  temptation,  the  ease  or  difficulty  of  obtaining  subsistence,  and  other 
circumstances,  as  well  as  the  operation  of  the  laws,  may  produce  the 
difference  I  have  shown.  But  does  it  not  raise  serious  doubts  as  to 
the  efficacy  of  the  capital  punishment,  to  observe  this  double  effect, 
that  almost  the  only  crime  which  we  punish  in  that  manner,  is  more 
frequent  in  the  proportion  of  twenty-seven  to  one,  while  those  which 
are  the  object  of  a  milder  sanction,  are  almost  in  the  same  ratio  less 
than  in  the  country  with  which  we  make  the  comparison  ? 

The  laws  of  none  of  the  states  punish  highway  robbery  with  death  ; 
those  of  the  United  States  affix  this  punishment  to  the  -robbery  of  the 
mail,  under  circumstances  which  generally  accompany  it.  Yet  it  is 
believed,  that  this  last  species  of  highway  robbery  is  more  frequent 
than  the  other — another  proof  that  the  fear  of  death  is  not  a  more  pow- 
erful preventative  of  crime  than  other  punishments. 

I  do  not  urge  the  doubts  which  many  wise  and  conscientious  per- 
sons have  entertained  of  the  right  of  inflicting  this  punishment,  because 


THE  PLAN  OF  A  PENAL  CODE.  31 

I  am  inclined  to  think  that  the  right  can  be  well  established.  If  this 
measure  be  the  only  one  that  can  prevent  the  crime,  government  has 
a  right  to  adopt  it,  unless  the  evil  arising  from  the  punishment  be 
greater  than  that  which  could  be  apprehended  from  the  offence.  If  it 
were  proved,  that  the  fruit  in  a  garden  could  not  be  preserved  without 
punishing  the  boys  who  stole  it  with  death,  the  evil  to  be  appre- 
hended from  the  offence  is  so  much  less  than  that  produced  by  the 
punishment,  that  it  ought  never  to  be  inflicted  by  the  law,  much  less 
(as  in  the  case  of  the  English  spring-guns)  by  the  party  injured  ;  but 
on  the  contrary,  it  is  a  less  evil  to  destroy  the  life  of  an  assassin,  than 
to  permit  him  to  take  that  of  a  man,  whose  existence  is  useful  to  his 
country,  and  necessary  to  his  family.  Whenever,  therefore,  in  this 
latter  case  the  alternative  is  proved  to  be  the  only  one,  I  do  not  think 
we  ought  to  hesitate  from  any  doubt  of  the  right :  but  if  the  necessity 
of  the  punishment,  as  well  as  the  preponderating  evil  of  the  crime, 
cannot  be  clearly  shown,  the  right  cannot  exist.  The  burthen  of  ar- 
gument rests  here  on  those  who  advocate  this  punishment ;  they  must 
show  that  it  is  the  only  means  of  repressing  the  offence:  they  must 
show,  that  in  the  cases  to  which  they  mean  to  apply  it,  the  evil  of  the 
offence  is  greater  than  the  punishment.  How  far  they  can  succeed  in 
the  first  part  of  this  task,  has  been  already,  in  part,  examined  ;  on  the 
latter  branch  of  the  position  it  may  be  proper  to  observe,  that  in  esti- 
mating the  evil  resulting  from  the  impunity  of  any  particular  offence, 
in  order  to  compare  it  with  that  of  the  punishment,  we  must  recollect, 
that  the  one  is  a  certain,  the  other  a  problematical  evil.  For  instance, 
a  man  commits  murder;  if  it  were  certain,  if  you  did  not  put  him  to 
death,  either  that  he  himself  would  repeat  the  offence,  or  that  the 
example  of  his  impunity  would  induce  another  to  do  it,  the  case  both 
of  necessity  to  prevent  crime,  and  of  the  preponderating  evil  of  the 
offence  over  that  of  the  remedy,  would  be  made  out.  But  it  does  not 
follow,  because  a  man  has  once  committed  a  crime,  he  will  therefore 
repeat  it,  nor  that  another  will  be  seduced  by  his  example  to  do  so ; 
both,  I  grant,  are  probable  ;  then  we  have  the  probability  of  two  evils 
to  put  in  competition  with  the  certainty  of  one  ;  but  a  strong  proba- 
bility of  a  great  evil  ought  to  countervail  the  certainty  of  a  smaller 
one ;  and  if  in  this  instance  the  probability  be  great,  that  society  might 
suffer  the  loss  of  its  worthiest  citizens,  this  ought  not  to  be  placed 
in  competition  with  the  evil  of  putting  an  assassin  to  death.  But  if 
by  other  means,  the  chance  of  Jthe  uncertain  evil  can  be  reduced  to  a 
bare  possibility,  then  the  certain  evil  should  not  be  incurred.  Admit- 
ting, therefore,  that  the  infliction  of  death  is  the  best  means  of  prevent- 
ing the  repetition  of  the  offence,  yet  if  perpetual  imprisonment  would 
as  effectually  prevent  the  offender  from  repeating  it,  and  would  also 
operate  as  an  example,  so  as  to  reduce  to  a  possibility  the  chance  of 
another  being  induced  by  the  mildness  of  the  punishment  to  commit 
the  crime,  then  the  certain  evil  of  taking  away  human  life  ought  not 
to  be  incurred,  because  the  remote  possibility  of  even  a  great  evil 
cannot  justify  it. 

But  before  we  adopt  any  of  these  calculations  (always  liable  to  the 
greatest  difficulty  in  practice),  we  ought  to  inquire  whether  the  position 
which  alone  renders  them  necessary  be  true.;  whether  the  punishment 
of  death  is  necessary  to  prevent  offences.  In  the  proper  sense  of  the 
expression,  we  know  this  is  not  the  case  ;  to  say  that  a  certain  single 
cause  is  necessary  to  produce  a  given  effect,  supposes,  that  if  the  cause 


38  REPORT  ON 

exist,  the  effect  will  certainly  follow  ;  but  it  is  not  pretended  that  the 
punishment  of  death  will,  in  all  cases,  prevent  the  crime  for  which  it 
is  inflicted  ;  all  that  is  meant  is,  that  it  is  better  adapted  to  that  end 
than  any  other  kind  of  punishment :  some  reasons  have  already  been 
given  to  show  that  it  is  not.  Let  us  examine  ihose  which  are  usually 
given  on  the  affirmative  side  of  this  interesting  question. 

First.     There  are  those  who  support  it  by  arguments  drawn  from  re- 
ligion.    The  divine  spirit  infused  into  the  great  legislator  of  the  Jews, 
from  whose  code  these  arguments  are  drawn,  was  never  intended  to  in- 
spire a  system  of  universal  jurisprudence.     The  theocracy  given  as  a 
form  of  government  to  that  extraordinary  people,  was  not  suited  to  any 
other  ;  as  little  was  the  system  of  their  penal  laws,  given  on  the  mys- 
terious mountain,  promulgated  from  the  bosom  of  a  dark  cloud,  amid 
thunder  and  lightning  ;  they  were  intended  to  strike  terror  into  the 
minds  of  a  perverse  and  obdurate  people  ;  and  as  one  means  of  effect- 
ing this,  the  punishment  of  death  is  freely  denounced  for  a  long  list  of 
crimes  ;  but  the  same  authority  establishes  the  lex  talionis,  and  other 
regulations,   which  those  who  quote  this  authority  would  surely  not 
wish  to  adopt.     They  forget  that  the  same  Almighty  author  of  that  law, 
at  a  later  period,  inspired  one  of  his  prophets  with  a  solemn  assurance, 
that  might  with  propriety   be  placed  over  the  gates  of  a  penitentiary, 
and  confirmed  it  with  an  awful  asseveration, — "  As  I  LIVE,  saith  the 
LORD  GOD,  I  have  no  pleasure  in  the  DEATH  of  a  sinner,  but  rather  that 
he  should  TURN  FROM  HIS  WICKEDNESS  AND  LIVE."     They  forget,  too, 
although  they  are  Christians  who  use  this  argument,  that  the  divine 
author  of  their  religion  expressly  forbids  the  retaliatory  system,  on 
which  the  punishment  of  death  for  murder  is  founded  ;  they  forget  the 
mild  benevolence  of  his  precepts,  the  meekness  of  his  spirit,  the  phi- 
lanthropy that  breathes  in  all  his  words,  and  directed  all  his  actions  ;  they 
lose  sight  of  that  golden  rule  which  he  established  :     "  To  do  nothing 
to  others  that  we  would  not  desire  them  to  do  unto  us  ;"  and  certainly 
pervert  the  spirit  of  his  holy  and  merciful  religion,  when  they  give  it 
as  the  sanction  for  sanguinary  punishments.     Indeed,  if  I  were  inclined 
to  support  my  opinion  by  arguments  drawn  from  religion,  the  whole 
New  Testament  should  be  my  text,   and  I  could  easily  deduce  from  it 
authority  for  a  system  of  reform  as  opposed  to  one  of  extermination. 
But  although  the  legislator  would  be  unworthy  of  the  name,  who  should 
prescribe  any  thing  contrary  to  the  dictates  of  religion,  and  particularly 
to  those  of  that  divine    morality  on  which  the  Christian  system   is 
founded,  yet  it  would  be  not  less  dangerous,  to  make  its  dogmas  the 
ground-work  of  his  legislation,  or  to  array  them  in  defence  of  political 
systems.     In  a  government,  where  all  religions  have  equal  privileges, 
it  would  be  obviously  unjust ;  it  would  lessen  the  reverence  for  sacred, 
by  mixing  them  with  political  institutions,  and  perverting  to  temporal 
uses  those  precepts  which  were  given  as  rules  for  the  attainment  of 
eternal  happiness. 

Secondly.  The  practice  of  all  nations,  from  the  remotest  antiquity, 
is  urged  in  favour  of  this  punishment ;  the  fact,  with  some  exceptions, 
is  undoubtedly  true,  but  is  the  inference  just  ?  There  are  general  er- 
rors, and  unfortunately  for  mankind,  but  few  general  truths,  established 
by  practice,  in  government  legislation.  Make  this  the  criterion,  and 
despotism  is,  by  many  thousand  degrees  on  the  scale  of  antiquity,  better 
than  a  representative  government :  the  laws  of  Draco  were  more  an- 


THE  PLAN  OF  A  PENAL  CODE.  33 

cient  than  those  of  Solon,  and  consequently  better  ;  and  the  practice 
of  torture  quite  as  generally  diffused  as  that  of  which  we  are  now  treat- 
ing. Idolatry  in  religion,  tyranny  in  government,  capital  punish- 
ments, and  inhuman  tortures  in  jurisprudence,  are  coeval  and  coexten- 
sive. Will  the  advocates  of  this  punishment  admit  the  force  of  their 
argument  in  favour  of  all  these  abuses  ?  If  they  do  not,  how  will  they 
apply  it  to  the  one  for  which  they  argue  ? 

The  long  and  general  usage  of  any  institution  gives  us  the  means  of 
examining  its  practical  advantages  or  defects  :  but  it  ought  to  have 
no  authority  as  a  precedent,  until  it  be  proved,  that  the  best  laws  are 
the  most  ancient,  and  that  institutions  for  the  happiness  of  the  people 
are  the  most  permanent  and  most  generally  diffused.  But  this  unfor- 
tunately cannot  be  maintained  with  truth  ;  the  melancholy  reverse 
forces  conviction  on  our  minds.  Every  where,  with  but  few  except- 
ions, the  interest  of  the  many  has,  from  the  earliest  ages,  been  sacrificed 
to  the  power  of  the  few.  Every  where  penal  laws  have  been 
framed  to  support  this  power  ;  and  those  institutions,  favourable  to  free- 
dom, which  have  come  down  to  us  from  our  ancestors,  form  no  part  of 
any  original  plan,  but  are  isolated  privileges  which  have  been  wrested 
from  the  grasp  of  tyranny,  or  which  have  been  suffered,  from  inatten- 
tion to  their  importance,  to  grow  into  strength. 

Every  nation  in  Europe  has,  during  the  last  eight  or  ten  centuries, 
been  involved  in  a  continual  state  of  internal  discord  or  foreign  war  : 
kings  and  nobles  continually  contending  for  power ;  both  oppressing 
the  people,  and  driving  them  to  desperation  and  revolt.  Different  pre- 
tenders, asserting  their  claims  to  the  throne  of  deposed  or  assassinated 
kings ;  religious  wars  ;  cruel  persecutions ;  partition  of  kingdoms  ; 
cessions  of  provinces  ;  succeeding  each  other  with  a  complication  and 
rapidity  that  defies  the  skill  and  diligence  of  the  historian  to  unravel 
and  record.  Add  to  this,  the  ignorance  in  which  the  human  mind  was 
involved,  during  the  early  and  middle  part  of  this  period  ;  the  intol- 
erant bigotry,  which  from  its  close  connection  with  government,  slifled 
every  improvement  in  politics  as  well  as  every  reformation  in  religion; 
and  we  shall  see  a  state  of  things  certainly  not  favourable  for  the  for- 
mation of  wise  laws  on  any  subject ;  but  particularly  ill  calculated  for 
the  establishment  of  a  just  or  humane  criminal  code.  From  such  legis- 
lators, acting  in  such  times,  what  could  be  expected,  but  that  which  we 
actually  find  ;  a  mass  of  laws  unjust,  because  made  solely  with  a  view 
to  support  the  temporary  views  of  a  prevailing  party  ;  unwise,  obscure, 
inhuman,  inconsistent,  because  they  were  the  work  of  ignorance,  dic- 
tated by  interest,  passion  and  intolerance.  But  it  would  scarcely  seem 
prudent  to  surrender  our  reason  to  authorities  thus  established,  and  to 
give  the  force  of  precedent  to  any  of  the  incoherent  collections  of  absurd, 
cruel,  and  contradictory  provisions  which  have  been  dignified  with  the 
name  of  penal  codes,  in  the  jurisprudence  of  any  nation  in  Europe,  as 
their  laws  stood  prior  to  the  last  century.  No  one  would  surely  advise 
this  ;  why  then  select  any  part  of  the  mass,  and  recommend  it  to  us, 
merely  because  it  has  been  generally  practised  ?  If  there  is  any  other 
reason  for  adopting  it,  let  that  be  urged,  and  it  ought  to  .have  its  weight; 
but  my  object  here  is  to  show,  that  from  the  mode  in  which  the  penal 
laws  of  Europe  have,  until  a  very  late  period,  been  established,  very 
little  respect  is  due  to  them  merely  on  account  of  their  antiquity,  or  of 
the  extent  to  which  they  have  prevailed.  If  the  criminal  jurisprudence 
E 


34  REPORT  ON 

of  the  modern  and  middle  ages  affords  us  little  reason  to  revere  either 
its  humanity  or  justice  ;  that  of  the  ancient  world  does  not  give  us  more. 
The  despotism  of  antiquity  was  like  that  of  modern  times,  and  such  as 
it  will  always  be  ;  it  can  have  but  one  character,  which  the  rare  occur- 
rence, of  a  few  mild  or  philosophic  monarchs  does  not  change  :  and  in 
the  laws  of  the  republics,  there  was  a  mixture  of  severity  and  indul- 
gence, that  makes  them  very  improper  models  for  imitation.  Yet  in 
Rome,  for  about  two  hundred  and  fifty  years,  from  the  date  of  the 
valerian  law  until  the  institutions  of  the  republic  were  annihilated  by 
the  imperial  power,  it  was  not  lawful  to  put  a  Roman  citizen  to  death  for 
any  crime  ;  and  we  cannot  learn  from  history  that  offences  were  unusu- 
ally prevalent  during  that  period ;  but  we  do  know  that  when  executions 
became  frequent,  Rome  was  the  receptacle  of  every  crime  and  every  vice. 
It  must,  however,  be  confessed,  that  we  have  not  sufficient  information 
to  determine  whether  the  frequency  of  capital  punishments  was  the 
cause  or  the  effect  of  this  depravity. 

Modern  history  affords  us  two  examples  which  deserve  to  be  attended 
to  in  this  discussion.  The  empress  Elizabeth  of  Russia,  soon  after  she 
came  to  the  throne,  abolished  the  pain  of  death  in  all  her  extensive  do- 
minions ;  her  reign  lasted  twenty  years,  giving  ample  time  to  try  the 
effect  of  the  experiment :  and  Beccaria  speaks  with  enthusiasm  of  the 
consequences  it  had  produced.  I  have  not  been  able  to  procure  the  regu- 
lations by  which  this  change  was  effected,  but  as  I  believe  the  knout  (an 
infliction  more  cruel  than  a  speedy  death)  was  preserved,  I  do  not  urge 
this  example  as  having  the  same  weight  it  would  have,  if  milder  pun- 
ishments had  been  substituted.  Three  years  after  Elizabeth  had  ceased  to 
reign  in  the  north  of  Europe,  her  great  experiment  was  renewed  in  the 
south.  Leopold  became  grand  duke  of  Tuscany,  and  one  of  his  first  acts 
was  a  declaration  (rigidly  adhered  to  during  his  reign)  that  no  offence 
should  be  punished  with  death;  he  substituted  a  mild  system  of  graduated 
punishments,  and  though  1  do  not  think  they  were  very  judiciously 
chosen,  yet  the  consequence  was,  an  immediate  decrease  in  the  number 
of  offences.  We  are  informed,  that  during  a  considerable  period,  the 
prisons  were  empty,  and  no  complaints  for  atrocious  offences  occurred; 
and  he  himself,  after  an  experiment  of  twenty  years,  declares,  "  that 
the  mitigation  of  punishments,  joined  to  a  most  scrupulous  attention  to 
prevent  crimes,  and  also  great  despatch  in  the  trial,  together  with  a 
certainly  and  suddenness  of  punishment  to  real  delinquents,  had,  instead 
of  increasing  the  number  of  crimes,  considerably  diminished  that  of  the 
smaller  ones,  and  rendered  those  of  an  ATROCIOUS  NATURE  VERY  RARE." 
This  passage  is  extracted  from  the  introduction  to  a  code  which  he  gave 
to  his  people  in  the  year  1786  :  four  years  afterwards,  he  was  called  to 
the  empire,  and  the  further  course  of  his  noble  experiment  was  inter- 
rupted. How  far  the  old  system  was  re-established,  I  am  not  accu- 
rately informed,  but  some  travellers  represent,  that  the  new  stale  of 
things  forms  a  contrast  very  much  in  favour  of  the  Leopold  code. 
These  instances,  I  think,  turn  the  scale  of  argument  as  it  applies  to  the 
authority  of  example  ;  if  we  can  rely  on  that  of  Tuscany  (and  it  seems 
perfectly  well  authenticated),  it  proves  the  inefficiency  of  capital  pun- 
ishments, in  great  as  well  as  smaller  offences,  and  it  is  of  more  weight 
than  the  united  practice  of  all  the  nations  of  the  world  where  the  pun- 
ishment is  retained,  but  where  it  has  never  been  found  effectual  to  re- 
press the  prevalence  of  crimes. 


THE  PLAN  OF  A  PENAL  CODE.  35 

The  third  and  last  argument  I  have  heard  urged,  is  nearly  allied  to 
the  second  ;   it  is,   the  danger  to  be  apprehended  from  innovation.     I 
confess,  1  always  listen  to  this  objection  with  some  degree  of  suspicion. 
That  men  who  owe  their  rank,  their  privileges,  their  emoluments,  to 
abuses  and  impositions,  originating  in  the  darkness  of  antiquity,  and 
consecrated  by  time;  that  such  men  should  preach  the  danger  of  inno- 
vations, I  can  well  conceive  ;  the  wonder  is,  that  they  can  find   others 
weak  and  credulous  enough  to  believe  them.     But  in  a  country  where 
these  abuses  do  not  exist;  in  a  country  whose  admirable  system  of 
government  is  founded   wholly  on   innovation,   where  there  is  no  anti- 
quity to  create  a  false  veneration  for  abuses,  and  no  apparent  interest 
to  perpetuate  them  ;  in  such  a  country,   this  argument  will  have  little 
force  against  the  strong  reasons  which  assail  it.     Let  those,  however, 
who  honestly  entertain  this  doubt,   reflect  that,    most  fortunately  for 
themselves  and  for  their  posterity,  they  live  in  an  age  of  advancement: 
not  an  art,  not  a  science,  that  has  not  in  our  day  made  rapid  progress 
towards  perfection.     The  one  of  which  we  now  speak  has  received 
and  is  daily  acquiring  improvement ;  how  long  is  it  since  torture  was 
abolished?     Since  judges  were  made  independent?     Since  personal 
liberty  was  secured,  and  religious  persecution  forbidden?     All  these 
were,  in  their  time,  innovations  as  bold  at  least  as  the  one  now  pro- 
posed.    The  true  use  of  this  objection,  and  there  I  confess  it  has  force, 
is  to  prevent  any  hazardous  experiment,   or  the  introduction  of  any 
change  that  is  not  strongly  recommended  by  reason.     I  desire  no  other 
test  for  the  one  that  is  now  under  discussion,  but  I  respectfully  urge, 
that  it  would  be  unwise  to  reject  it,  merely  because  it  is  untried,  if  we 
are  convinced  it  will  be  beneficial.     Should  our  expectations  be  disap- 
pointed, no  extensive  evil  can  be  done  ;  the  remedy  is  always  in  our 
power.      Although  an  experiment,  it  is  not  a  hazardous  one,  and  the 
only  inquiry  seems  to  be,  whether  the  arguments  and  facts  stated  in  its 
favour,  are  sufficiently  strong  to  justify  us  in  making  it.   Indeed,  it  ap- 
pears to  me  that  the  reasoning  might,  with  some  propriety,  be  retorted 
against  those  who  use  it,  by  saying — "  all  punishments  are  but  experi- 
ments to  discover  what  will  best  prevent  crimes  ;  your  favourite  one  of 
death  has  been  fully  tried.     By  your  own  account,  all  nations,  since  the 
first  institution  of  society,  have  practised  it,  but  you  yourselves  must 
acknowledge,  without  success.     All  we  ask,  then,  is  that  you  abandon 
an  experiment  which  has  for  five  or  six  thousand  years  been  progress- 
ing under  all  the  variety  of  forms  which  cruel  ingenuity  could  invent; 
and  which  in  all  ages,  under  all  governments,  has  been  found  wanting. 
You   have  been  obliged  reluctantly  to  confess  that  it  is  inefficient,  and 
to  abandon  it  in  minor  offences  ;  what  charm  has  it  then  which  makes 
you  cling  to  it  in  those  of  a  graver  cast  ?     You  have  made  your  experi- 
ment ;  it  was  attended  in  its  operation   with  an  incalculable  waste  of 
human  life  ;  a  deplorable  degradation  of  human  intellect ;  it  was  found 
often  fatal  to  the  innocent,  and  it  very  frequently  permitted  the  guilty 
to  escape.     Nor  can  you  complain  of  any  unseasonable  interference 
with  your  plan  that  may  account  for  its  failure  :  during  the  centuries 
that  your  system  has  been  in  operation,  humanity  and  justice  have  never 
interrupted  its  course  ;  you  went  on  in  the  work  of  destruction,  always 
seeing  an  increase  of  crime,  and  always  supposing  that  increased  sever- 
ity was  the  only  remedy  to  suppress  it :  the  mere  forfeiture  of  life  was 
too  mild;  tortures  were  superadded,  which  nothing  but  the  intelligence 


36  REPORT  ON 

of  a  fiend  could  invent,  to  prolong  its  duration  and  increase  its  torments; 
yet  there  was  no  diminution  of  crime  ;  and  it  never  occurred  to  you, 
that  mildness  might  accomplish  that  which  could  not  be  effected  by 
severity."  This  great  truth  revealed  itself  to  philosophers,  who  im- 
parted it  to  the  people  ;  the  strength  of  popular  opinion  at  length  forced 
it  upon  kings,  and  the  work  of  reformation,  in  spite  of  the  cry  against 
novelty,  began.  It  has  been  progressive.  Why  should  it  stop,  when 
every  argument,  every  fact,  promises  its  complete  success  ?  We  could 
not  concur  in  the  early  stages  of  this  reformation;  perhaps  the  credit 
may  be  reserved  to  us  of  completing  it;  and  I  therefore  make  no  apology 
to  the  general  assembly  for  having  so  long  occupied  them  with  this  dis- 
cussion. In  imposing  so  important  a  change,  it  was  necessary  to  state 
the  prominent  reasons  which  induced  me  to  think  it  necessary  ;  many 
more  have  weighed  upon  my  mind,  and  on  reviewing  these,  I  feel  with 
humility  and  regret  how  feebly  they  are  urged.  The  nature  of  the 
subject  alone  will,  however,  create  an  interest  sufficient  to  promote  in- 
quiry, and  humanity  will  suggest  arguments  which  I  have  not  had 
sagacity  to  discover  or  the  talent  to  enforce. 

Having  stated  the  reasons  which  induced  me  to  discard  all  the  differ- 
ent punishments  which  have  been  reviewed,  I  proceed  to  a  short  dis- 
cussion of  those  which  have  been  adopted.  These  are 

Pecuniary  fines  ;  degradation  from  office  ;  simple  imprisonment  ;  tem- 
porary suspension  of  civil  rights  ;  permanent  deprivation  of  civil  rights; 
imprisonment  at  bard  labour  ;  solitary  confinement  during  certain 
intervals  of  the  time  of  imprisonment,  to  be  determined  in  the  sentence. 

The  advantage  of  this  scale  of  punishment  is,  that  it  is  divisible  al- 
most to  infinity;  that  there  is  no  offence,  however  slight,  for  which  it 
does  not  afford  an  appropriate  corrective  ;  and  none,  however  atro- 
cious, for  which,  by  cumulating  its  different  degrees,  an  adequate  pun- 
ishment cannot  be  found. 

When  to  these  are  added  the  regulations  which  are  made  in  certain 
cases,  as  to  the  nature  of  food  and  other  comforts,  during  the  term  of 
punishment,  it  has,  in  an  almost  perfect  degree,  the  essential  quality  of 
being  capable  of  apportionment,  not  only  to  any  species  of  offence,  but 
to  every  offender.  Sex,  age,  habits,  constitution,  every  circumstance 
which  ought  to  determine  the  exercise  of  discretionary  power,  may 
have  its  proper  weight. 

Reformation  of  the  criminal  may  reasonably  be  expected. 

He  is  effectually  restrained  from  a  repetition  of  his  crime. 

A  permanent  and  striking  example  is  constantly  operating  to  deter 
others. 

The  punishment  being  mild,  public  feeling  will  never  enlist  the 
passions  of  the  people  in  opposition  to  the  law. 

The  same  cause  will  ensure  a  rigid  performance  of  their  duty  by 
public  officers. 

Jurors,  from  a  false  compassion,  will  seldom  acquit  the  guilty  ;  and 
if  by  chance  or  prejudice  they  should  convict  the  innocent,  their  error 
or  fault  is  not  as  in  the  cases  of  infliction  of  stripes — permanent  stigmas, 
or  death — without  the  reach  of  redress. 

These  are  advantages  which  render  the  penitentiary  system  decidedly 
superior  to  any  other. 

To  detail  the  mode  in  which  these  different  punishments  are  com- 
posed and  applied  to  the  different  offences,  would  be  to  repeat  the  pro- 


THE  PLAN  OF  A  PENAL  CODE.  37 

visions  of  the  whole  book,  which  cannot  be  expected  from  the  nature 
of  this  report ;  enough,  and  I  fear  more  than  enough,  has  been  said 
on  this  division  of  the  work. 

1  proceed  to  the  plan  of  the  fourth  book,  which,  as  we  have  seen, 
is  intended  to  give  rules  of  practice  in  all  criminal  proceedings. 

It  regulates  the  mode  in  which  complaints  and  accusations  are  to  be 
made  ;  designates  the  proper  persons  to  receive  them,  and  directs  their 
duty  in  conducting  the  examination  ;  taking  the  evidence  on  the  com- 
plaint, and  ordering  the  arrest ;  prescribes  the  form  of  warrants  ;  and 
designates  precisely  the  cases  where  arrests  may  be  made  without 
Ihem.  It  prescribes  minutely  the  duties,  and  defines  the  authority, 
as  well  of  officers  as  of  individuals,  who  assist  them  in  making  arrests. 

It  regulates  the  mode  of  conducting  the  examination,  and  the  man- 
ner of  making  commitments,  so  as  to  avoid  the  frequent  escapes  of 
the  guilty  from  the  former  defective  practice  on  this  head. 

The  manner  in  which  the  person  is  to  be  treated,  during  his  con- 
finement, is  minutely  detailed ;  provisions  are  introduced  to  prevent 
or  punish  all  abuses  of  authority  in  those  who  arrest  or  have  charge 
of  the  prisoner. 

Rules  are  laid  down  for  directing  the  discretion  of  the  magistrate, 
and  ascertaining  his  duties  in  admitting  to  bail. 

The  manner  in  which  accusations,  and  the  evidence  to  support  them, 
are  to  be  brought  before  the  proper  court,  is  distinctly  described. 

Rules  are  presented  for  the  organization  and  mode  of  conducting 
business  before  grand  juries.  Their  duties  are  defined,  as  are  those 
of  the  public  prosecutor,  in  presenting  indictments  before  them. 

The  cases  are  distinguished  which  are  to  be  prosecuted  by  indict- 
ment, from  those  in  which  information  may  be  filed. 

Rules  are  laid  down  for  drawing  acts  of  accusation,  so  as  to  secure 
a  proper  degree  of  certainty  in  the  allegation  of  the  offence,  but  to 
prevent  the  escape  of  the  guilty  from  formal  defects. 

The  mode  of  making  the  arraignment ;  the  manner  of  pleading  ;  the 
rules  for  conducting  the  trial ;  the  duties  of  the  judge  ;  of  the  advocate 
for  the  accused,  and  of  the  public  prosecutor,  in  relation  to  it,  are  mi- 
nutely marked  out. 

Regulations  are  made  for  summoning,  swearing,  and  challenging 
jurors,  and  for  their  government  on  the  trial,  and  on  the  delivery  of 
the  verdict. 

Directions  are  given  for  summoning  and  securing  the  attendance  of 
witnesses. 

The  causes  are  designated  for  which  judgments  may  be  arrested 
and  new  trials  granted,  and  all  the  proceedings  subsequent  to  the  ver- 
dict are  provided  for. 

A  chapter  is  dedicated  to  the  regulation  of  the  manner  in  which 
search-warrants  are  to  be  granted  and  executed,  and  another  to  the 
designation  of  the  cases  in  which  security  may  be  required  against  the 
commission  of  apprehended  offences.  Contempts  are  defined,  and  the 
mode  of  trying  and  punishing  them  is  marked  out. 

The  last  chapter  of  this  book  contains  a  system  of  proceeding  on 
writs  of  habeas  corpus. 

This  chapter  will  be  the  first  act  of  legislation  in  our  state  on  this 
subject;  important  enough,  it  would  seem,  to  have  sooner  engaged  our 
attention.  This  writ  was  known  in  a  remote  period  of  the  English 


38  REPORT  ON 

law,  but  it  was  a  precept  without  a  sanction,  and  therefore  totally  in- 
efficient until  the  statute  passed  in  the  31st  year  of  Charles  II.  gave  it 
force  and  efficacy,  and  made  it  a  feature  in  their  jurisprudence,  of  which 
any  nation  might  be  proud,  and  which  all  ought  to  imitate  or  adopt. 
The  mechanism  of  this  admirable  contrivance  for  securing  personal 
liberty  is  so  simple,  its  effects  are  so  decisive,  that  we  are  led  to  won- 
der why  it  was  not  sooner  put  in  operation,  especially  in  a  nation  which 
at  so  early  a  period  made  it  a  stipulation  with  their  king,  that  "  no 
freeman  should  be  imprisoned  but  by  the  law  of  the  land."  Indeed  the 
writ  itself  was  known  in  the  Roman  law  by  the  name  of  the  interdict 
de  homine  libero  exhibendo ;  but  it  was  applicable  only  to  the  case  of 
a  freeman  claimed  as  a  slave  ;  and  we  do  not  find  that  even  in  that  case 
there  were  any  provisions  to  enforce  its  execution  :  on  the  contrary, 
there  was  one  which  permitted  any  person  to  refuse  obedience,  who 
chose  rather  to  pay  for  the  man,  estimating  his  value  as  if  he  was  a 
slave.  In  no  stage  of  its  history,  therefore,  was  this  writ  of  any  im- 
portance until  the  spirit  of  liberty,  nearly  extinguished  under  the  ener- 
getic despotism  of  the  Tudors,  rose  superior  to  the  weakness  of  the 
Stuarts,  and  inspired  the  declaration  of  those  principles  of  personal 
and  political  rights,  on  which  our  republics  are  chiefly  founded.  One 
of  the  most  important  measures  which  this  spirit  suggested,  was  the 
habeas  corpus  act ;  it  directs  the  manner  in  which  the  writ  is  to  issue  ; 
imposes  penalties  for  disobedience  to  it,  and  makes  a  number  of  saluta- 
ry provisions  to  prevent  delays  and  abuses  in  criminal  proceedings. 
In  all  the  Atlantic  states,  this  statute  was  a  part  of  the  law  by  which 
they  were  governed  at  the  time  they  became  independent ;  and  it  was 
either  expressly  or  impliedly  adopted  with  the  whole  body  of  their 
municipal  laws.  In  those  states,  therefore,  nothing  more  was  neces- 
sary than  to  guard  against  its  suspension  by  a  constitutional  clause. 
But  here  the  case  was  different,  the  common  law  of  England  was  not 
in  force  here,  still  less  were  its  statutes.  Neither  could  form  part  of 
our  law,  unless  specially  re-enacted.  Yet  the  framers  of  our  constitu- 
tion, not  attending  to  this  difference,  contented  themselves  with  tran- 
scribing from  the  constitutions  of  other  states,  the  provision  that  "the 
privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when  in  cases  of  rebellion  or  invasion  the  public  safety  may  require 
it."  But  no  law  had  before,  or  has  been  since  passed,  defining  what 
the  writ  of  habeas  corpus  was,  or  directing  the  manner  in  which  it 
was  to  be  obtained,  how  it  was  to  be  executed,  what  was  to  be  its  ef- 
fect, or  what  the  penalty  of  disobeying  it.  If  the  writ  alone  be  intro- 
duced without  the  provisions  for  enforcing  it,  it  could  be  of  as  little  use 
here  as  it  was  in  England  before  the  statute  of  Charles  II.  ;  if  the 
statute  be  introduced,  do  we  stop  at  that  of  Charles  ?  or  are  those  of 
16  George  I.  and  38  of  George  III.  re-enacted  by  this  laconic  legisla- 
tion ?  If  either  of  them  are,  they  involve,  as  applied  to  us,  great  absur- 
dities :  for  they  contain  many  provisions  which  are  purely  local,  all  of 
them  referring  to  courts  and  to  magistrates  which  do  not  exist  under 
our  laws ;  and  impose  penalties  which  are  not  recoverable  here ; 
and  yet  on  which  the  whole  efficacy  of  the  act  depends.  So  that 
whatever  construction  we  put  on  this  clause  in  our  constitution,  it 
must  be  confessed,  that  without  some  statute  to  define  and  enforce  the 
great  privilege  of  which  it  declares  we  shall  not  be  deprived,  the  pro- 
vision can  be  of  little  use.  Hitherto  the  necessity  for  this  remedy  has 


THE  PLAN  OF  A  PENAL  CODE.  39 

been  so  strongly  felt,  that  judges  have  not  scrupulously  examined  their 
right  to  afford  it ;  and  even  when  improperly  granted,  so  strongly  is  it 
supported  by  public  opinion,  that  parties,  though  they  have  sometimes 
evaded  its  operation,  have  never  thought  proper  to  question  its  legality. 
It  has  held  its  authority,  therefore,  by  the  moral  sense  of  the  people, 
exerting  its  influence  in  support  of  an  institution  which  they  have  been 
taught  from  their  infancy  to  venerate  and  admire,  rather  than  by  the 
constraint  of  law.  But  times  may  come  ;  in  the  natural  progress  of 
human  affairs  must  come  ;  when  public  opinion  will  have  less  force, 
and  without  the  aid  of  law  for  its  support,  will  prove  a  feeble  barrier 
against  encroachment. 

The  offences  against  personal  liberty,  which  are  most  dangerous,  are 
those  that  are  committed  for  political  purposes,  and  as  the  means  of 
silencing  opposition  to  unconstitutional  and  revolutionary  measures. 
All  the  energies  of  the  law,  armed  with  its  strongest  sanctions,  and  di- 
rected by  the  most  efficient  measures  to  secure  its  execution  then  become 
necessary.  The  magnitude  of  the  evil,  therefore,  concurring  with  the 
probability  of  its  occurrence,  calls  for  the  attention  of  the  legislature  to 
this  important  subject.  In  examining  the  different  enactments  of  this 
justly  celebrated  statute,  every  friend  of  freedom  must  be  grateful  to  its 
authors  for  the  extensive,  and  it  is  devoutly  to  be  hoped,  the  lasting 
benefit  they  have  conferred  on  mankind.  Ten  millions  of  freemen 
have  already  consecrated  it  among  their  fundamental  rights,  and  the 
rising  republics  of  the  new  world  will  not  fail  to  adopt  so  precious  an 
institution,  when  they  review  and  finally  establish  their  constitutional 
compacts. 

This  is  the  greatest  glory  a  wise  nation  can  desire  ;  to  see  its  princi- 
ples recognized  ;  its  institutions  adopted  ;  its  laws  copied,  not  only  by 
men  speaking  the  same  language,  and  bred  in  a  similarity  of  manners, 
but  translated  into  different  languages,  adapting  themselves  to  different 
habits  ;  incorporated  in  different  codes,  and  in  all,  acknowledged  as  the 
first  of  blessings.  And  the  trial  of  a  cause,  by  an  independent  jury,  on 
the  banks  of  the  La  Plata  or  the  Oroonook  ;  or  the  writ  of  habeas  cor- 
pus adopted  by  a  representative  assembly  in  Mexico  and  Peru,  ought 
to  afford  more  satisfaction  to  an  Englishman,  who  loves  the  honour  of 
his  country,  than  the  most  splendid  triumph  of  her  arms.  We  must 
not,  however,  suffer  our  admiration  of  any  institution  to  blind  us  to  its 
faults  or  prevent  us,  when  we  are  about  to  adopt  it,  from  scrutinizing 
severely  all  its  provisions,  and  carefully  inquiring  whether  in  its  ope- 
ration, defects  have  not  been  discovered,  which  a  prudent  attention 
might  amend.  In  examining  the  English  statute  with  this  view,  some 
important  omissions  have  been  observed  ;  and  in  the  project  presented 
to  you,  an  attempt  has  been  made  to  remedy  them.  Some  of  the  most 
important  ought  to  be  enumerated. 

1.  The  great  object  of  this  writ  ;  that,  which  constitutes  its  chief 
excellence,  I  may  say  its  only  use,  is  the  promptitude  and  efficacy 
with  which  it  acts.  To  borrow  a  phrase  from  another  branch  of  juris- 
prudence, it  is  a  writ  for  "  specific  performance,"  or  it  is  nothing.  In 
all  civilized  countries,  there  are  actions  given  for  injuries  to  personal 
liberty  :  but  no  nation,  until  England  set  the  example,  provided  any 
means  for  the  immediate  cessation  of  the  evil.  This  law  enforces  it  by 
attachment,  fines  and  penalties  ;  in  most  cases,  these  are  effectual :  but 
there  are  circumstances  in  which  the  party  injured  would  obtain  no  re- 


40  REPORT  ON 

lief,  and  the  offender  would  escape  punishment,  notwithstanding  the 
provisions  of  the  statute.  A  person  may  be  unlawfully  arrested,  and 
forcibly  embarked,  to  be  conveyed  out  of  the  country  ;  the  writ  of 
habeas  corpus  may  issue  ;  it  may  even  be  served  in  time,  but  if  the 
party  to  whom  it  is  directed  choose  to  make  an  insufficient  return,  no 
other  process  can  issue  until  that  return  has  been  received,  debated, 
and  determined  to  be  insufficient ;  and  then,  it  is  not  a  compulsory 
process,  but  a  penal  one,  which  is  awarded  ;  not  giving  liberty  to  the 
prisoner,  but  punishing  the  party  for  his  disobedience,  who  detains 
him  ;  in  the  mean  time  the  sufferer  may  be  conveyed  out  of  the  king- 
dom, or  some  other  irreparable  injury  may  be  inflicted  on  him.  This 
is  a  case  which  must  probably  have  often  occurred  in  England,  by 
abuses  under  their  press-warrants  ;  by  military  encroachments,  and  for 
purposes  of  private  vengeance  or  public  oppression.  Recent  as  has 
been  the  establishment  of  our  government,  an  outrageous  and  well- 
known  example  of  this  abuse  took  place  here  ;  an  evasive  return  was 
made  and  repeated,  and  while  the  court  was  occupied  in  determining 
its  validity,  a  number  of  citizens  were  carried  out  of  the  state  by  a 
military  officer,  on  a  groundless  charge  of  political  crimes. 

To  prevent  the  occurrence  of  an  evil  of  this  kind,  an  article  has  been 
inserted,  directing,  whenever  a  case  is  made  out  to  justify  the  issuing 
of  this  writ,  accompanied  by  proof,  that  deportation,  or  any  other 
irremediable  injury  is  apprehended;  or  whenever  the  writ  is  disobeyed, 
that  the  magistrate  shall,  instead  of  the  habeas  corpus,  issue  his  warrant 
to  bring  the  prisoner,  and  the  party  in  whose  custody  he  is  held,  be- 
fore him,  that  the  one  may  be  released  and  the  other  committed  for 
trial,  in  all  cases  in  which  those  steps  may  be  required  by  law. 

2.  Under  the  English  law,  the  return  is  taken  for  true,  and  the  only 
remedy  is  an  action  against  the  person  who  makes  a  false  return  ;  a 
doctrine  utterly  subversive  of  the  true  intent  of  the  act,  and  which,  in 
many  cases,  has  rendered  it  nugatory.     This  doctrine  was  established 
on  a  reference  to  the  twelve  judges,  by  the  house  of  lords,   in   1757, 
and  was  enforced  in  the  case  of  American  seaman  impressed  on  board 
of  English  vessels  ;  the  captain  returned,  that  they  had  voluntarily  en- 
listed, and  without  any  other  evidence,  they  were  remanded   to  their 
slavery,  and  told,  that  if  they  survived  the  war,  and  could  find  any  one 
to  bring  an  action  for  a  false  return,  on  proving  it,   they  might  obtain 
relief.     This  glaring  defect  is  removed  by  the  law  presented  to  you  ; 
and  the  mode  is  prescribed   for  examining  into  the  truth  of  a  return 
when  it  is  controverted. 

3.  The  judges  in  the  case  alluded  to,  determined  unanimously,  that 
the  provisions  made  for  awarding  and  returning  writs  of  habeas  corpus 
immediately,  do  not  extend  to  any  case  but  those  of  a  criminal  or  sup- 
posed criminal  nature.      Mr  Justice  Bathurst,  it  is  true,  adds  to  his 
opinion,  that  although  the  statute  did  not  extend  to  other  cases,  yet  the 
justices  of  the  king's  bench  had,  in  favour  of  liberty,  extended  the  same 
relief  to  all  cases. 

To  give  full  effect  to  this  remedy,  it  is  proposed  expressly  to  extend 
it  to  every  case  of  illegal  imprisonment  and  restraint.  - 

4.  By  the  English  practice,  when  a  prisoner  is  brought  upon  habeas 
corpus,  if  the  commitment  be  informal,  he  is  discharged,  although  suf- 
ficient evidence  may  exist  to  justify  his  detention  for  trial.     The  plan 
proposes  a  remedy  for  this  evil,  by  obliging  the  officer  who  brings  up 


THE  PLAN  OF  A  PENAL  CODE.  41 

the  prisoner,  to  produce  the  evidence  on  which  he  was  committed,  and 
directing  the  judge  before  whom  the  writ  is  returned,  to  re-commit  him 
if  the  evidence  warrant  it. 

As  the  whole  of  this  chapter  is  submitted,  it  is  not  necessary  to 
notice  any  other  of  the  omissions  which  have  been  supplied,  or  the 
defects  which  it  has  been  attempted  to  remedy.  A  strong  impress- 
ion of  the  utility  of  this  great  writ,  has  rendered  me  particularly  de- 
sirous to  increase  the  facility  of  procuring  it ;  to  enlarge  the  sphere  of 
its  relief;  to  give  an  adequate  sanction  to  each  of  the  provisions  that 
are  enacted;  to  impress  upon  the  people  the  utility  of  preserving  it  and 
the  danger  of  suffering  it  to  be  violated,  and  to  show  the  value  we  place 
on  this  and  other  institutions  of  freedom,  not  by  suffering  them  to  re- 
main imperfect  from  a  blind  reverence  for  their  antiquity,  but  by 
studying  to  improve,  or,  if  possible,  to  perfect  them,  and  by  leaving  to 
our  children,  not  only  unimpaired,  but  augmented,  those  privileges  be- 
queathed to  us  by  the  wisdom  and  patriotism  of  our  fathers. 

The  great  objects  in  the  execution  of  this  division  of  the  work,  have 
been  to  protect  the  innocent  from  ill-founded  prosecutions,  and  even  the 
guilty  from  Vexation,  in  the  manner  of  conducting  those  which  were 
necessary  to  ascertain  their  guilt.  But  at  the  same  time,  to  insure  the 
exact  execution  of  the  laws,  and  as  far  as  possible  to  destroy  the  effect 
of  those  devices  which  professional  ingenuity  has  so  frequently  used 
to  procure  the  escape  of  the  guilty.  Some  new  provisions  have  been 
introduced  to  effect  these  objects,  but  where  they  could  be  obtained 
without  innovation,  none  have  been  proposed.  In  those  cases  my  en- 
deavours have  been  confined  to  the  arrangement  of  the  law  applicable 
to  the  different  divisions,  under  its  proper  heads;  and  to  giving  precise 
and  intelligible  language  to  the  rules  of  procedure.  Even  a  slight  no- 
tice of  all  the  points  in  which  changes  or  modifications  of  the  present 
law  have  been  suggested,  would  extend  this  report,  already  too  long, 
to  an  inconvenient  size.  It  may  not  be  amiss,  however,  to  mention  a 
prohibition  of  those  charges,  which  the  judge  frequently  uses  as  the 
means  of  diffusing  his  political  tenets,  displaying  his  eloquence,  and 
sometimes  gratifying  his  passions;  and  of  those  presentments  of  the  same 
nature,  by  which  the  jury  recommend  candidates  to  office,  denounce 
public  measures,  or  eulogize  the  virtues  of  men  in  power;  such  proceed- 
ings were  thought  beneath  the  dignity  of  the  magistrate,  and  inconsist- 
ent with  the  sanctity  of  that  body,  whose  functions  of  public  accusers, 
and  guardians  of  the  liberty  and  reputation  of  their  fellow-citizens, 
require  calm  investigation,  undisturbed  by  intemperate  discussions.  If 
an  ordinary  court  of  justice  be  properly  called  the  temple  of  that  high 
attribute  of  the  deity,  we  may,  without  too  far  extending  the  metaphor, 
term  the  tribunal  of  criminal  jurisdiction,  a  shrine  in  that  temple  ;  the 
holy  of  holies,  into  which  impure  or  unworthy  passion  should  find  no 
admittance,  and  where  no  one  ought  to  officiate  until  he  has  put  off  the 
habits  of  ordinary  life,  and  assumed,  with  the  holy  robes  of  his  func- 
tion, that  purity  of  intention,  that  ardent  worship  of  truth,  so  incon- 
sistent with  the  low  pursuits  of  interest,  the  views  of  ambition  or  the 
vanity  of  false  talent.  Party  spirit  unfortunately  will,  in  some  degree, 
influence  every  other  department ;  from  the  nature  of  our  government 
it  must  exist,  but  it  will  do  no  material  injury,  while  it  is  felt  in  the  le- 
gislative, or  even  in  the  executive  branches  ;  but  if  it  once  find  admit- 
tance to  the  sanctuary  of  justice,  we  may  be  assured,  that  the  vitals  of 
F 


42  REPORT  ON 

our  political  constitution  are  affected,  and  I  can  imagine  no  better  means 
of  facilitating  this  corruption,  than  permitting  your  judges  to  make  po- 
litical harangues  to  a  jury,  who  reply  by  a  party  presentment. 

Another  article  applicable  to  the  trial,  restricts  the  charge  of  the  judge 
to  an  opinion  of  the  law,  and  to  the  repetition  of  the  evidence,  only 
when  required  by  any  one  of  the  jury  :  the  practice  of  repeating  all 
the  testimony  from  notes,  always  (from  the  nature  of  things)  imperfect- 
ly, not  seldom  inaccurately,  and  sometimes  carelessly,  taken,  has  a 
double  disadvantage  ;  it  makes  the  jurors,  who  rely  more  on  the  judges' 
notes  than  their  own  memory,  inattentive  to  the  evidence  ;  and  it 
gives  them  an  imperfect  copy  of  that,  which  the  nature  of  the  trial  by 
jury  requires  they  should  record  in  their  own  minds.  Forced  to  rely 
upon  themselves,  the  necessity  will  quicken  their  attention,  and  it  will 
be  only  when  they  disagree  in  their  recollection,  that  recourse  will  be 
had  to  the  notes  of  the  judge.  There  is  also  another  and  more  cogent 
reason  for  the  restriction.  Judges  are  generally  men  who  have  grown 
old  in  the  practice  at  the  bar.  With  the  knowledge  which  this  expe- 
rience gives,  they  also  acquire  a  habit,  very  difficult  to  be  shaken  off, 
of  taking  a  side  in  every  question  that  they  hear  debated,  and  when  the 
mind  is  once  enlisted,  their  passions,  prejudices,  and  professional 
ingenuity  are  always  arrayed  on  the  same  side,  and  furnish  arms  for  the 
contest.  Neutrality  cannot,  under  these  circumstances,  be  expected ;  but 
the  law  should  limit,  as  much  as  possible,  the  evil  that  this  almost  in- 
evitable state  of  things  must  produce.  In  the  theory  of  our  law,  judges 
are  the  counsel  for  the  accused,  in  practice  they  are,  with  a  few  ho- 
nourable exceptions,  his  most  virulent  prosecutors.  The  true  principles 
of  criminal  jurisprudence  require  that  they  should  be  neither.  Per- 
fect impartiality  is  incompatible  with  these  duties.  A  good  judge 
should  have  no  wish  that  the  guilty  should  escape,  or  that  the  innocent 
should  suffer  ;  no  false  pity,  no  undue  severity  should  bias  the  unshaken 
rectitude  of  his  judgment ;  calm  in  deliberation,  firm  in  resolve, 
patient  in  investigating  the  truth,  tenacious  of  it  when  discovered  ;  he 
should  join  urbanity  of  manners  to  dignity  of  demeanour,  and  an  in- 
tegrity above  suspicion,  to  learning  and  talent;  such  a  judge  is  what, 
according  to  the  true  structure  of  our  courts,  he  ought  to  be — the  pro- 
tector, not  the  advocate  of  the  accused  ;  his  judge,  not  his  accuser  ;  and 
while  executing  these  functions,  he  is  the  organ  by  which  the  sacred 
will  of  the  law  is  pronounced.  Uttered  by  such  a  voice,  it  will  be 
heard,  respected,  felt,  obeyed  ;  but  impose  on  him  the  task  of  argu- 
ment, of  debate;  degrade  him  from  the  bench  to  the  bar  ;  suffer  him  to 
overpower  the  accused  with  his  influence,  or  to  enter  the  lists  with  his 
advocate,  to  carry  on  the  contest  of  sophisms,  of  angry  arguments,  of 
tart  replies,  and  all  the  wordy  war  of  forensic  debate  ;  suffer  him  to  do 
this,  and  his  dignity  is  lost ;  his  decrees  are  no  longer  considered  as  the 
oracles  of  the  law  ;  they  are  submitted  to,  but  not  respected  ;  and  even 
the  triumph  of  his  eloquence  or  ingenuity,  in  the  conviction  of  the  ac- 
cused, must  be  lessened  by  the  suspicion,  that  it  has  owed  its  success  to 
official  influence,  and  the  privilege  of  arguing  without  reply.  For  these 
reasons  the  judge  is  forbidden  to  express  any  opinion  on  the  facts  which 
are  alleged  in  evidence,  much  less  to  address  any  argument  to  the  jury; 
but  his  functions  are  confined  to  expounding  the  law,  and  stating  the 
points  of  evidence  on  which  the  recollection  of  the  members  of  the  jury 
may  differ. 


THE  PLAN  OF  A  PENAL  CODE.  43 

I  pass  over  other  alterations  of  less  importance,  and  proceed  to  the 
consideration  of  the  fifth  book. 

This,  as  we  have  seen  in  the  plan,  is  devoted  to  the  rules  of  evidence 
as  applicable  to  criminal  law.  In  the  execution  of  this  part  of  the  work, 
general  principles  will  be  first  laid  down,  applicable  to  all  cases  of  crim- 
inal inquiry,  from  its  incipient  to  its  final  stage  ;  they  will  be  such  only 
as  have  received  the  sanction  of  the  learned  and  the  wise,  or  such  as 
can  be  supported  by  the  clearest  demonstration  of  their  utility  and  truth. 
The  evidence  necessary  to  justify  commitments,  indictments,  and  convic- 
tions for  each  offence  specified  in  the  third  book,  as  well  as  that  which 
may  be  admitted  in  the  defence,  will  be  detailed  under  separate  heads, 
and  such  an  arrangement  will  be  studied  as  to  make  this  part  of  the 
work  easily  comprehended,  and  remembered  without  difficulty. 

It  is  obvious,  from  the  nature  of  this  division  of  the  subject,  that  il- 
lustrations of  the  rules  it  contains  cannot  be  given  without  greatly  ex- 
ceeding the  limits  of  an  ordinary  report.  It  may  be  proper,  however, 
under  this  head,  to  notice  that  an  attempt  is  made  to  enforce  the  sanc- 
tion and  add  to  the  solemnity  of  oaths.  From  the  careless  and  often 
unintelligible  manner  in  which  they  are  administered,  it  seems  an  idle 
ceremony  rather  than  a  sacred  promise,  accompanied  by  a  renunciation 
of  the  blessings  of  the  deity  in  case  it  should  be  broken.  Rules  are 
framed  on  this  subject,  which  it  is  supposed  may,  in  some  measure, 
correct  the  evil,  and  make  witnesses  more  cautious  and  circumspect  in 
their  testimony,  by  impressing  upon  the  mind  a  proper  sense  of  the 
serious  consequences  of  its  violation.  If  this  impression  should  be 
insufficient  to  prevent  deliberate  perjury,  it  will  at  least  restrain  the 
more  prevalent  evil  of  those  aberrations  from  truth  which  are  caused 
by  exaggeration,  carelessness  or  passion. 

The  sixth  and  last  division  of  the  work,  is  to  contain  rules  for  the 
establishment  and  government  of  the  public  prisons  ;  comprehending 
those  intended  for  detention  previous  to  trial ;  for  simple  confinement, 
and  for  correctional  imprisonment  at  hard  labour,  or  in  solitude. 

Upon  these  rules,  and  the  proper  execution  of  them,  depend  the  suc- 
cess of  the  whole  system.  But  it  will  be  useless  to  make  rules,  because 
impossible  to  execute  them,  unless  the  edifice  to  be  prepared  for  this 
purpose  be  on  a  scale  sufficiently  extensive  to  permit  the  proper  class- 
ification, the  separate  employment  and  proper  seclusion  of  the  different 
offenders.  Without  these,  we  can  neither  produce  reformation  nor 
hope  for  any  effect  from  example.  And  yet,  because  it  produces  nei- 
ther, we  find  fault  with  the  system,  when  we  should  arraign  only  our 
want  of  attention  to  its  principle.  Vice  is  more  infectious  than  disease ; 
many  maladies  of  the  body  are  not  communicated  even  by  contact,  but 
there  is  no  vice  that  affects  the  mind,  which  is  not  imparted  by  con- 
stant association  ;  and  it  would  be  more  reasonable  to  put  a  man  in 
a  pest-house,  to  cure  him  of  a  headach,  than  to  confine  a  young 
offender  in  a  penitentiary,  organized  on  the  ordinary  plan,  in  order  to 
effect  his  reformation.  Considering  this  interior  arrangement  as  essen- 
tial to  the  success  of  the  whole  plan,  it  was  deemed  improper  to  leave 
it  to  the  discretion  of  the  governors  or  warden  ;  but  by  means  of  pre- 
cise and  somewhat  minute  regulations,  to  place  the  discipline  of  the 
prison  on  a  basis  that  should  not  vary  according  to  the  different  theories 
of  those  who  are  to  enforce  it,  taking  care,  however,  to  allow  a  reason- 
able discretion  in  cases  where  considerations  of  humanity  require  it. 


44  REPORT  ON 

In  order  to  frame  these  regulations  to  advantage,  it  would  be  very 
advisable  to  obtain  more  information  than  we  now  possess,  of  the  prac- 
tical operation  of  those  which  have  been  tried  in  the  other  states. 

For  this  purpose  1  intend,  if  possible,  to  devote  a  few  months  of  the 
summer  to  a  personal  examination  of  the  different  institutions  of  the 
kind  in  the  Atlantic  states  ;  but  if  my  circumstances  should  not  permit 
me  to  execute  this  plan,  I  shall  renew  the  efforts  I  have  already  made 
to  procure  the  information  which  the  different  returns  and  reports  can 
give. 

Every  system  having  reformation  for  its  principal,  or  even  incidental 
object,  is  imperfect,  if  it  do  not  contain  a  regular  and  permanent  pro- 
vision for  giving  education  to  the  young  offenders,  and  moral  and  re- 
ligious instruction  to  all. 

Lessons  of  this  nature,  inculcated  by  men  of  piety  and  benevolence  ; 
enforced  by  a  life  of  temperance  and  labour,  and  not  counteracted  by 
any  evil  associations,  I  firmly  believe,  will  make  many  a  discharged 
convict  a  more  worthy  member  of  society  than  some  who  have  never 
committed  any  offence  of  sufficient  magnitude  to  incur  the  same  disci- 
pline. But  reformation  is  not  enough  ;  although  sincere,  it  will  not  be 
lasting,  if  the  distrust  of  society  shall  drive  the  repentant  sinner  from 
its  bosom  ;  deny  him  the  means  of  subsistence,  and  force  him  to  seek 
it  in  a  new  association  with  his  former  companions  in  guilt.  To  avoid 
this  consequence,  means  must  be  found  to  test  by  a  proper  interval  of 
probation,  the  sincerity  of  his  reformation  ;  to  give  him  an  opportunity 
of  regaining  confidence,  by  acts  of  gradual  intercourse  with  the  public, 
and  after  repeated  trials,  if  it  be  found  that  he  can  withstand  temptation, 
to  assign  him  a  place  in  society,  which  will  enable  him  to  subsist  with- 
out reproach. 

This  part  of  the  plan  will  be  difficult  of  execution,  but  it  is  not  deemed 
impracticable,  and  it  will  be  facilitated  and  enforced  by  increased  se- 
verity for  a  repetition  of  offences,  as  well  in  the  duration  of  punishment 
as  in  the  increase  of  privations  while  it  lasts.  Should  the  regulations 
which  I  suggest  for  this  purpose  be  adopted,  and  be  found  efficient,  it 
will  complete  the  system  which  substitutes  amendatory  to  vindictive 
punishments.  A  reformation  in  penal  jurisprudence  which  reflects 
higher  honour  on  modern  times,  than  the  greatest  discoveries  they  have 
produced  in  arts,  literature,  or  science. 

This  is  the  plan  of  the  work,  and  these  are  the  principles  on  which 
it  is  founded  ;  if  after  examining  them,  it  should  be  perceived  that  they 
are  inconsistent  with  the  views  of  the  legislature,  or  that  the  execution 
falls  short  of  their  expectations,  the  evil  is  still  within  the  reach  of 
such  remedy  as  their  wisdom  may  suggest. 

From  such  parts  of  the  code  as  are  in  the  state  of  greatest  forward- 
ness, I  have  selected  the  second  book,  and  the  last  chapter  of  the 
fourth,  as  specimens  of  the  execution*.  The  one  being  chiefly  an  enun- 
ciation of  general  principles,  and  the  other  necessarily  confined  to  mat- 
ters of  practical  detail,  the  general  assembly  can  the  better  judge, 
whether  a  proper  attention  to  sound  theory  has  been  combined  with 
efficient  practical  details  ;  and  whether  the  great  object  I  have  had  in 

*  This  report  was  made  before  the  completion  of  the  "  System  of  Penal  Law,"  the  pub- 
lication of  which  now  renders  the  insertion  of  these  specimens  unnecessary. 


THE  PLAN  OF  A  PENAL  CODE.  45 

view,  of  rendering  every  rule  intelligible,  although  concise,  has,  in  a 
reasonable  degree,  been  attained. 

Some  parts  of  the  third  book  are  prepared,  but  the  whole  of  this  di- 
vision is  still  in  an  unfinished  state.  The  fourth  is  nearly  complete. 
The  fifth  cannot,  without  great  inconvenience,  be  put  into  form  until 
the  crimes  to  which  the  evidence  is  to  apply  are  defined  and  definitively 
classed  ;  this  book  must,  therefore,  necessarily  be  unfinished  until  the 
completion  of  the  third  ;  and  the  want  of  that  information,  which  I  hope 
to  obtain  by  a  personal  inspection  of  the  prisons,  has  unavoidably  de- 
layed what  I  have  to  add  to  the  sixth  and  last  book. 

I  have  only  to  add,  on  this  subject,  that  from  the  progress  already 
made,  I  hope  that  the  whole  system  will  be  presented  at  the  next  ses- 
sion. And  I  submit  to  the  legislature,  whether  it  would  not  be  proper 
to  direct,  that  when  finished  it  shall  be  printed  for  the  inspection  of  the 
members. 

This  report  is  intended  to  apprize  the  representatives  of  the  people 
what  changes  are  proposed  to  be  made  in  their  criminal  jurisprudence  ; 
to  inform  them  why  these  changes  are  deemed  necessary  ;  to  lay  before 
them  a  plan  of  the  whole  work  ;  to  announce  the  principles  on  which 
it  is  established  ;  and  by  the  exhibition  of  a  part,  to  show  in  what  man- 
ner it  may  be  reasonably  expected  that  the  whole  will  be  executed. 

In  performing  this  duty,  the  line  traced  by  the  law  under  which  I 
was  appointed,  has  been  scrupulously  adhered  to.  In  its  execution,  I 
claim  no  other  merit  than  that  of  diligence,  and  a  most  conscientious 
desire  to  perform  it  in  such  a  manner  as  will  best  reconcile  humanity 
with  justice,  and  the  great  interests  of  freedom  with  both. 

The  representatives  of  a  free  people,  although  they  may  do  nothing  to 
forfeit  the  confidence  of  their  constituents,  cannot  always  expect  to  re- 
tain the  power  of  serving  them.  A  spirit  of  change  is  inherent  in  our 
government  ;  it  gives  it  energy,  and  is  even  necessary  to  its  existence. 
We  appear  in  public  life  ;  perform  or  neglect  the  duties  assigned  to  us; 
and  then,  pushed  off  the  stage  by  younger,  more  active,  or  more  popu- 
lar candidates,  we  return  to  the  mass  of  our  fellow-citizens  ;  in  common 
with  them,  to  suffer  the  evils  or  enjoy  the  benefits  of  the  measures  we 
have  adopted.  It  is  not  always  that,  in  the  brief  space  allotted  to  us 
for  the  performance  of  'our  functions,  we  have  an  opportunity  of  mak- 
ing it  an  epoch  in  the  annals  of  our  country,  by  institutions,  with  which 
a  grateful  posterity  will  identify  the  names  of  those  by  whose  patriotic 
labours  they  were  established.  This  rare  occasion  now  presents  itself 
for  your  acceptance. 

If  the  work  which  your  wisdom  has  directed,  and  which  your  sound 
judgment,  experience  and  care  will  modify  and  correct,  should  effect 
the  object  of  giving  to  your  country  a  penal  code,  founded  on  true 
principles — concise,  correct,  humane,  easily  understood,  guarding  with 
the  same  scrupulous  care  the  rights  of  the  poorest  citizen  and  of  the 
most  influential  member  of  society  ;  inforcing  firmly,  not  harshly,  a 
strict  obedience  to  the  laws  ;  repressing  with  an  even  hand  the  abuses 
of  oifice  and  the  license  of  insubordination  ;  protecting  the  good,  re- 
straining, punishing  and  reforming  the  wicked  ;  arraying  the  best  feel- 
ings and  most  powerful  passions,  as  well  as  the  understanding  on  the 
side  of  the  law  ;  making  disobedience  unwise  and  inattractive,  as  well 
as  dangerous  ;  arming  all  your  institutions  with  public  opinion,  and  di- 
recting its  irresistible  force  against  vices  and  crimes  ;  rendering  your 


46  REPORT,  &c. 

judges  venerated  as  the  oracles  of  justice,  and  your  courts  respected  as 
its  sanctuary.  Should  this  be  the  result,  few  public  bodies  can  boast  a 
fairer  claim  than  you  will  then  have  to  the  approbation  of  their  con- 
stituents and  the  gratitude  of  posterity.  For  you  will  have  rendered 
an  essential  service,  not  only  to  your  own  country,  by  securing  its  in- 
ternal peace,  and  establishing  its  reputation  for  wisdom  and  justice,  but 
to  the  other  states,  by  giving  them  an  useful  and  honourable  example, 
and  to  the  whole  world,  by  demonstrating  the  ease  and  safety  with 
which  abuses  are  corrected,  and  improvements  introduced  under  a  free 
government,  and  exemplifying  its  superiority  by  this  proof  of  the 
rapid  progress  it  has  enabled  you  to  make  in  the  science  of  legislation, 
during  the  few  years  you  have  enjoyed  it.  And  the  grateful  prayers 
of  the  innocent  whom  you  will  have  saved,  of  the  guilty  you  will 
have  reformed,  and  of  the  whole  community  whose  feelings  will  no 
longer  be  lacerated  by  public  exhibitions  of  suffering  and  of  death,  will 
combine  with  your  own  consciousness  of  rectitude,  in  drawing  down 
a  blessing  on  your  lives,  and  diffusing  a  glow  of  happiness  over  that 
hour,  when  the  remembrance  of  one  measure  effected  for  the  interests 
of  humanity  or  the  permanent  good  of  our  country,  will  be  of  more 
value  than  all  the  fleeting  and  unsatisfactory  recollections  of  success  in 
the  pursuits  of  fortune  or  ambition. 

All  which  is  respectfully  submitted. 

EDWARD    LIVINGSTON. 


A    SYSTEM 


PENAL      LAW, 


THE  STATE  OF  LOUISIANA : 


CONSISTING   OK 

A  CODE  OF  CRIMES  AND  PUNISHMENTS, 

A  CODE  OF  PROCEDURE, 

A  CODE  OF  EVIDENCE, 

A  CODE  OF  REFORM  AND  PRISON  DISCIPLINE, 

A  BOOK  OF  DEFINITIONS. 


PREPARED, 


EDWARD  LIVINGSTON. 


INTRODUCTORY  REPORT 


THE    SYSTEM     OF    PENAL    LAW, 


PREPARED   FOR 


THE  STATE  OF  LOUISIANA. 


I  LAY  before  the  general  assembly,  with  unaffected  diffidence,  the 
system  which  they  directed  me  to  prepare.  This  feeling,  however, 
does  not  arise  from  any  apprehension  that  the  work  has  not  been 
framed  according  to  the  spirit  of  the  instructions  that  were  given  for 
its  execution  ;  they  have  been  constantly  before  me.  Nor  have  I 
entertained  any  doubt  of  the  correctness  of  the  principles  on  which 
those  instructions  were  founded  ;  on  the  contrary,  every  new  view 
that  unfolded  itself,  as  I  gave  them  the  form  of  practical  precept,  con- 
vinced me  of  their  wisdom  and  utility.  But  in  strictly  following  good 
rules  according  to  the  best  of  my  judgment,  that  judgment  must  fre- 
quently have  erred.  To  apply  general  principles  to  the  numerous 
subdivisions  of  criminal  jurisprudence,  so  that  the  same  spirit  might 
pervade  its  different  branches  of  sanction,  procedure,  evidence,  and 
discipline,  presented  a  task  which  nothing  but  the  highest  presumption 
could  hope  to  perform  without  falling  into  many  errors.  Of  my  own 
fallibility  no  one  can  be  more  sensible  than  I  am,  and  no  one  could  have 
taken  greater  precautions  to  correct  it.  Not  a  provision  has  been  made, 
without  the  deepest  reflection  upon  its  consequences.  Not  a  line  has 
been  written,  that  was  not  sent  to  every  quarter  of  the  union  in  search 
of  amendment.  Not  a  suggestion  has  been  offered,  that  has  not  been 
adopted,  without  pride  of  opinion,  when  it  brought  conviction  to  my 
mind  ;  and  the  long  list  of  corrections,  at  the  end  of  the  printed  copies, 
attest  how  slight  my  attachment  has  been  to  preconceived  ideas,  or  to 
the  language  in  which  they  were  expressed,  when  either  my  own  re- 
flection, or  the  advice  of  others,  convinced  me  that  they  might  be 
amended.  The  codes,  as  they  are  now  presented,  have  been  produced 
by  the  exercise  of  my  best  faculties,  faithfully  and  laboriously  employ- 
ed, under  the  direction  of  a  religious  desire  to  perform  the  high  duty 
G 


50  INTRODUCTORY  REPORT  TO 

entrusted  to  me,  so  as,  in  some  degree,  to  realize  the  great  views  of 
those  by  whom  I  was  appointed. 

Cheered  and  encouraged  in  the  very  outset  of  the  work  by  the  ap- 
probation which  the  general  assembly  bestowed  on  the  plan  and  the 
specimens  which  accompanied  it,  I  proceeded  with  alacrity  in  the  exe- 
cution of  my  task  ;  and  in  its  progress,  had  the  satisfaction  to  receive 
testimonials  equally  calculated  to  stimulate  my  exertion.  Some  of  them 
I  have  obtained  leave  to  communicate  with  this  report.  They  all  con- 
cur in  the  utility  of  the  projected  reform.  Some  speak  in  the  highest 
style  of  encomium  on  the  honour  the  state  has  acquired  by  leading  the 
way  in  effecting  it  ;  and  when  the  high  terms,  in  which  the  friendship 
of  some,  and  the  politeness  of  others,  have  induced  them  to  speak  of 
the  execution  of  the  work,  are  reduced  to  their  just  value,  most  of  them 
contain  reflections  that  will  be  found  of  great  use  in  the  discussion  of 
the  codes. 

Well  aware  of  the  difficulties  of  my  task,  but  feeling  a  conviction 
that  they  were  not  insurmountable,  I  undertook  it  with  so  much  con- 
fidence as  was  necessary  to  sustain  me  in  its  execution ;  but  with  that 
distrust  of  my  own  powers,  which  made  me  submit  to  the  test  of  long 
reflection  and  severe  scrutiny  every  principle  1  laid  down  and  every 
provision  intended  to  give  it  effect.  I  made  these  my  leading  rules — 
to  adopt  no  theory,  by  whatever  specious  argument  supported,  until  I 
should  be  convinced  of  its  practical  utility  ;  diligently  to  seek  for  infor- 
mation, but  to  admit  nothing  upon  the  mere  authority  of  high  names  ; 
to  make  no  unnecessary  innovation,  but  boldly  to  propose  every  change 
I  should  think  practicable  and  useful.  This  process  unavoidably  con- 
sumed much  time  ;  but,  by  assiduous  labour,  in  little  more  than  two 
years  after  my  plan  had  received  the  sanction  of  your  predecessors,  I 
had  completed  the  work.  Its  destruction  in  the  autumn  of  the  year 
1824  was  communicated  to  the  general  assembly,  and  produced  a  re- 
solution giving  me  another  year  to  renew  it.  This  was  to  be  done 
entirely  from  recollection,  for  not  a  written  vestige  of  my  former  labour 
remained  ;  and  the  task  of  recomposition,  always  irksome,  was  inter- 
rupted and  rendered  more  difficult  by  the  interference  of  engagements, 
which,  supposing  my  undertaking  finished,  I  had  made  for  the  ensuing 
year.  These  circumstances,  while  they  afford  a  reason,  and  perhaps 
an  excuse  for  delay,  will  render  negligent  error  more  unpardonable. 

The  enunciations  of  fact  as  well  as  of  principle,  contained  in  the  law 
under  which  I  have  acted,  and  the  resolution  approving  of  the  plan 
which  was  prepared  in  conformity  with  its  provisions,  might  seem  to 
preclude  the  necessity  of  saying  any  thing  to  show  that  a  reform  in  our 
criminal  jurisprudence  was  called  for,  or  that  the  directions  contained 
in  the  law  were  proper  in  order  to  effect  it.  But  when  it  is  considered, 
that  the  general  assembly  has  been  twice  changed  since  those  acts  were 
passed,  and  that  all  the  enemies  of  reformation  have  been  industriously 
at  work  during  that  period  in  urging  arguments  against  the  contemplated 
change,  it  may  not  be  deemed,  I  hope,  improper  to  attempt,  in  this  re- 
port, a  refutation  of  arguments  and  a  disproval  of  allegations  calculated 
to  mislead,  and  to  perpetuate  the  degrading  state  of  subjection  to  un- 
written, and  therefore  necessarily  unknown  laws. 

The  law  of  1820  recites,  "  that  it  is  of  primary  importance  in  every 
well  regulated  state,  that  the  code  of  criminal  law  should  be  founded 


THE  SYSTEM  OF  PENAL  LAW.  51 

on  one  principle — the  prevention  of  crime  ;  that  all  offences  should 
be  clearly  and  explicitly  defined  in  language  generally  understood  ; 
that  punishments  should  be  proportioned  to  offences  ;  that  the  rules  of 
evidence  should  be  ascertained  as  applicable  to  each  offence  ;  that  the 
mode  of  procedure  should  be  simple,  and  the  duty  of  magistrates,  ex- 
ecutive officers,  and  individuals  assisting  them,  should  be  pointed  out  by 

law  ;  AND  THAT  THE  SYSTEM  OF  CRIMINAL  LAW,  BY  WHICH  THIS 
STATE  IS  NOW  GOVERNED,  IS  DEFECTIVE  IN  MANY  OR  ALL  OF  THE 

POINTS  ABOVE  ENUMERATED."  Two  years  afterwards  another  general 
assembly,  with  the  approbation  of  the  governor,  resolved,  "that 
they  approve  of  the  plan  proposed  by  Edward  Livingston,  in  his  re- 
port made  in  pursuance  of  an  act,  entitled,  an  'act  relative  to  the 
criminal  laws  of  this  state,*  and  earnestly  solicit  Mr  Livingston  to 
prosecute  this  work  according  to  the  said  report ;"  and  thereby  added 
their  sanction  to  a  development  of  the  same  enunciations  contained 
in  the  preamble  to  the  code  which  was  submitted  for  their  consideration. 
This  will  be  frequently  referred  to,  and  I  therefore  quote  it  at  length  : 

"  No  act  of  legislation  can  be,  or  ought  to  be,  immutable.  Changes 
are  required  by  the  alteration  of  circumstances  ;  amendments,  by  the 
imperfection  of  all  human  institutions  ;  but  laws  ought  never  to  be 
changed  without  great  deliberation,  and  a  due  consideration  as  well  of 
the  reasons  on  which  they  were  founded,  as  of  the  circumstances  under 
which  they  were  enacted.  It  is  therefore  proper,  in  the  formation  of 
new  laws,  to  state  clearly  the  motives  for  making  them,  and  the  prin- 
ciples by  which  the  framers  were  governed  in  their  enactment.  With- 
out the  knowledge  of  these,  future  legislatures  cannot  perform  the  task 
of  amendment,  and  there  can  be  neither  consistency  in  legislation,  nor 
uniformity  in  the  interpretation  of  laws. 

"  For  these  reasons  the  general  assembly  of  the  the  state  of  Louis- 
iana declare,  that  their  objects  in  establishing  the  following  code 
are — 

"  To  remove  doubts  relative  to  the  authority  of  any  parts  of  the 
penal  law  of  the  different  nations  by  which  this  state,  before  its  inde- 
pendence, was  governed. 

"  To  embody  into  one  law  and  to  arrange  into  system  such  of  the 
various  prohibitions  enacted  by  different  statutes  as  are  proper  to  be 
retained  in  the  penal  code. 

"  To  include  in  the  class  of  offences,  acts  injurious  to  the  state  and 
its  inhabitants,  which  are  not  forbidden  by  law. 

"  To  abrogate  the  reference,  which  now  exists,  to  a  foreign  law  for 
the  definition  of  offences  and  the  modes  of  prosecuting  them. 

"  To  organize  a  connected  system  for  the  prevention  as  well  as  for 
the  prosecution  and  punishment  of  offences. 

"  To  collect  into  written  codes,  and  to  express  in  plain  language, 
all  the  rules  which  it  may  be  necessary  to  establish,  for  the  protection 
of  the  government  of  the  country,  and  the  persons,  property,  condition, 
and  reputation  of  individuals  ;  the  penalties  and  punishments  attached 
to  a  breach  of  those  rules  ;  the  legal  means  of  preventing  offences,  and 
the  forms  of  prosecuting  them  when  committed  ;  the  rules  of  evidence, 
by  which  the  truth  of  accusations  are  to  be  tested  ;  and  the  duties  of 
executive  and  judicial  officers,  jurors,  and  individuals,  in  preventing, 
prosecuting,  and  punishing  offences  :  to  the  end  that  no  one  need  be 


52  INTRODUCTORY  REPORT  TO 

ignorant  of  any  branch  of  criminal  jurisprudence,  which  it  concerns  all 
to  know. 

"  And  to  change  the  present  penal  laws  in  all  those  points  in  which 
they  contravene  the  following  principles  ;  which  the  general  assembly 
consider  as  fundamental  truths,  and  which  they  have  made  the  basis  of 
their  legislation  on  this  subject,  to  wit : 

«' Vengeance  is  unknown  to  the  law.  The  only  object  of  punish- 
ment is  to  prevent  the  commission  of  offences  :  it  should  be  calculated 
to  operate — 

"  First,  on  the  delinquent,  so  as  by  seclusion  to  deprive  him  of  the 
present  means,  and  by  habits  of  industry  and  temperance  of  any  future 
desire,  to  repeat  the  ofience. 

«  Secondly,  on  the  rest  of  the  community,  so  as  to  deter  them,  by 
the  example,  from  a  like  contravention  of  the  laws.  No  punishments 
greater  than  are  necessary  to  effect  these  ends  ought  to  be  inflicted. 

"No  acts  or  omissions  should  be  declared  to  be  offences,  but  such 
as  are  injurious  to  the  state,  to  societies  permitted  by  the  laws,  or  to 
individuals. 

"  But  penal  laws  should  not  be  multiplied  without  evident  necessity; 
therefore  acts,  although  injurious  to  individuals  or  societies,  should  not 
be  made  liable  to  public  prosecution,  when  they  may  be  sufficiently 
repressed  by  private  suit. 

"From  the  imperfection  of  all  human  institutions,  and  the  inevitable 
errors  of  those  who  manage  them,  it  sometimes  happens  that  the  inno- 
cent are  condemned  to  suffer  the  punishment  due  to  the  guilty.  Pun- 
ishments should,  therefore,  be  of  such  a  nature  that  they  may  be  re- 
mitted, and,  as  far  as  possible,  compensated,  in  cases  where  the  injustice 
of  the  sentence  becomes  apparent. 

"  Where  guilt  is  ascertained,  the  punishment  should  be  speedily  in- 
flicted. 

"Penal  laws  should  be  written  in  plain  language,  clearly  and  une- 
quivocally expressed,  that  they  may  neither  be  misunderstood  nor  per- 
verted ;  they  should  be  so  concise,  as  to  be  remembered  with  ease,  and 
all  technical  phrases  or  words  they  contain,  should  be  clearly  defined; 
they  should  be  promulgated  in  such  a  manner  as  to  force  a  knowledge 
of  their  provisions  upon  the  people  ;  to  this  end,  they  should  not  only 
be  published,  but  taught  in  the  schools  ;  and  publicly  read  on  stated 
occasions. 

"  The  law  should  never  command  more  than  it  can  enforce.  There- 
fore, whenever  from  public  opinion,  or  any  other  cause,  a  penal  law 
cannot  be  carried  into  execution,  it  should  be  repealed. 

"  The  accused,  in  all  cases,  should  be  entitled  to  a  public  trial,  con- 
ducted by  known  rules,  before  impartial  judges,  and  an  unbiassed  jury  ; 
to  a  copy  of  the  act  of  accusation  against  him  ;  to  the  delay  necessary 
to  prepare  for  his  trial  ;  to  process  to  enforce  the  attendance  of  his  own 
witnesses  ;  and  to  an  opportunity  of  seeing,  hearing,  and  examining 
those  who  are  produced  against  him  ;  to  the  assistance  of  counsel  for 
his  defence;  to  free  communication  with  such  counsel,  if  in  confinement, 
and  to  be  bailed  in  all  cases,  except  those  particularly  specified  by  law. 
No  presumption  of  guilt,  however  violent,  can  justify  the  infliction  of 
any  punishment  before  conviction,  or  of  any  bodily  restraint  greater 
than  is  necessary  to  prevent  escape  ;  and  the  nature  and  extent  of  this 
restraint  should  be  determined  by  law. 


THE  SYSTEM  OF  PENAL  LAW.  53 

"Perfect  liberty  should  be  secured  of  hearing  and  publishing  a  true 
account  of  the  proceedings  of  criminal  courts,  limited  only  by  such 
restrictions  as  morality  and  decency  require ;  and  no  restraint  what- 
soever should  be  imposed  on  the  free  discussion  of  the  official  con- 
duct of  the  judges,  and  other  ministers  of  justice,  in  this  branch  of 
government. 

"  Such  a  system  of  procedure,  in  criminal  cases,  should  be  estab- 
lished as  to  be  understood  without  long  study  ;  it  should  neither  suffer 
the  guilty  to  escape  by  formal  objections,  nor  involve  the  innocent  in 
difficulties  by  errors  in  pleading. 

"  For  this  purpose,  amendments  should  be  permitted  in  all  cases, 
where  neither  the  accused  nor  the  public  prosecutor  can  be  surprised. 

"  Those  penal  laws  counteract  their  own  effect,  which,  through  a 
mistaken  lenity,  give  greater  comforts  to  a  convict  than  those  which 
he  would  probably  have  enjoyed  while  at  liberty. 

"The  power  of  pardoning  should  be  only  exercised  in  cases  of  in- 
nocence discovered,  or  of  certain  and  unequivocal  reformation. 

"Provision  should  be  made  for  preventing  the  execution  of  in- 
tended offences,  whenever  the  design  to  commit  them  is  sufficiently 
apparent. 

"  The  remote  means  of  preventing  offences  do  not  form  the  subject 
of  penal  laws.  The  general  assembly  will  provide  them  in  their  pro- 
per place.  They  are  the  diffusion  of  knowledge,  by  the  means  of  pub- 
lic education,  and  the  promotion  of  industry,  and  consequently  of  ease 
and  happiness,  among  the  people. 

"Religion  is  a  source  of  happiness  here,  and  the  foundation  of  our 
hopes  of  it  hereafter  ;  but  its  observance  can  never,  without  the  worst 
of  oppression,  form  the  subject  of  a  penal  code.  All  modes  of  belief, 
and  all  forms  of  worship,  are  equal  in  the  eye  of  the  law  ;  when  they 
interfere  with  no  private  or  public  rights,  all  are  entitled  to  equal  pro- 
tection in  their  exercise. 

"  Whatever  may  be  the  majority  of  the  professors  of  one  religion 
or  sect  in  the  state,  it  is  a  persecution  to  force  any  one  to  conform 
to  any  ceremonies,  or  to  observe  any  festival  or  day,  appropriated  to 
worship  by  the  members  of  a  particular  religious  persuasion  :  this  does 
not  exclude  a  general  law,  establishing  civil  festivals  or  periodical 
cessations  from  labour  for  civil  purposes  unconnected  with  religious 
worship,  or  the  appointment  of  particular  days  on  which  citizens  of  all 
persuasions  should  join,  each  according  to  his  own  rites,  in  rendering 
thanks  to  God  for  any  signal  blessing,  or  imploring  his  assistance  in  any 
public  calamity. 

"  The  innocent  should  never  be  made  to  participate  in  the  punish- 
ment inflicted  on  the  guilty  ;  therefore,  no  such  effects  should  follow 
conviction,  as  to  prevent  the  heir  from  claiming  an  inheritance  through, 
or  from  the  person  convicted.  Still  less  should  the  feelings  of  nature 
be  converted  into  instruments  of  torture,  by  denouncing  punishment 
against  the  children,  to  secure  the  good  conduct  of  the  parent. 

"Laws  intended  to  suppress  a  temporary  evil  should  be  limited  to 
the  probable  time  of  its  duration,  or  carefully  repealed  after  the  reason 
for  enacting  them  has  ceased." 

These  different  expressions  of  legislative  opinion  would  seem  to  pre- 
clude the  necessity  of  any  argument  to  show  the  defects  of  our  present 
system  of  penal  law,  or  to  establish  the  truth  of  the  principles  upon 


54  INTRODUCTORY  REPORT  TO 

which  the  proposed  amendments  are  founded.  But  as  I  have  taken 
truth  for  the  foundation  of  all  my  statements,  utility  for  the  sole  object 
of  my  provisions,  and  reason  alone  as  the  means  of  supporting  my  con- 
clusions, 1  shall  not  take  shelter  behind  any  authority  ;  but  shall  en- 
deavour, in  this  report,  to  show  that  the  legislative  declaration  of  the 
defective  state  of  our  penal  law,  is  founded  in  fact,  and  that  the  princi- 
ples they  prescribed  to  remedy  the  evil  were  founded  in  wisdom  and 
practical  truth.  This  will  be  not  only  useful  but  necessary  to  the  pro- 
per consideration  of  the  reports,  in  which  the  attention  of  the  legisla- 
ture is  called  to  the  principal  enactments  in  the  different  codes,  offered 
for  their  consideration.  For,  without  this  previous  discussion,  they 
cannot  determine  whether  those  provisions  remedy  the  existing  evils, 
or  whether  they  are  in  unison  with  each  other  and  with  the  sound 
doctrines  of  penal  jurisdiction,  on  which  they  purport  to  rest.  If  the 
proposed  system  cannot  be  supported  by  reasons  showing  that  it  is 
both  practicable  and  useful,  it  ought  not  to  be  adopted  ;  but  let  no  part  of 
it  be  rejected  on  the  authority  only  of  influential  names  ;  still  less  by 
the  affected  doubts  of  interested,  or  the  errors  of  sincere  prejudice. 

In  this  report,  then,  I  propose  to  show  THE  NECESSITY  OF  A  RE- 
FORM, FROM  A  VIEW  OF  THE  ACTUAL  STATE  OF  OUR  PENAL  LAWS,  and 

to  answer  the  objections  that  have  been  made  to  the  establishment  of  a 
written  system. 

The  objects  of  penal  law  are,  to  define  offences,  to  prevent  their  com- 
mission, and  to  designate  and  direct  the  mode  of  inflicting  the  penalty, 
when  they  are  committed.  To  effect  these  objects,  there  must  be  rules 
established  by  legislative  authority.  Those  rules  must  be  known  ; 
and  to  be  known,  they  must  be  promulgated.  But  the  rule  can  neither 
be  made,  nor  be  known,  nor  promulgated,  unless  it  be  clothed  in  words. 
Are  those  words  to  be  oral  or  written,  is  the  first  question.  A  strange 
one,  it  would  seem,  in  our  state  of  society,  yet  seriously  made  ;  seri- 
ously answered  in  favour  of  traditional  against  written  law — made  and 
answered  by  lawyers,  by  judges,  by  men  whose  situation  gives  influ- 
ence, and  whose  opinions  have  weight.  Such  are  the  advocates  for  re- 
taining the  reference  to  that  part  of  the  English  common  law  which 
forms  a  part  of  our  criminal  jurisprudence.  That  part  is  not  inconsid- 
erable :  it  pervades  the  whole  mass  of  our  legislation  on  this  subject : 
and  it  is  necessary  to  understand  this,  that  we  may  know  how  to  value 
the  argument  which  asserts  that  our  statutes,  not  the  English  common 
law,  defines  offences  and  imposes  the  penalties.  This  is  not  the  fact. 
The  groundwork  of  our  penal  law  is  the  territorial  statute  of  1805.  It 
enumerates  the  offences  and  indicates  the  penalties  ;  but  it  does  not 
define.  Theft,  burglary,  murder,  and  other  crimes,  are  made  punish- 
able. But  if  we  want  to  know  what  theft,  or  murder,  or  any  other 
offence  on  the  list  is  ;  if  we  wish  to  know  what  means  we  may  use  to 
prevent  either  of  these  crimes;  how  the  offender  is  to  be  arrested,  how 
confined,  how  bailed,  how  tried,  what  evidence  can  be  admitted,  what 
is  required  for  conviction  ;  for  all  these,  and  an  hundred  other  questions 
equally  important,  we  are  referred  to  the  common  law  of  England; 
that  is  to  say,  what  one  of  its  greatest  panegyrists  styles,  "  the  un- 
written or  common  law,"  consisting  of  "general  customs" — of  par- 
ticular customs — and  of  "  certain  particular  laws,  which  by  custom 
are  adopted  and  used  by  some  particular  courts."  The  whole  rest- 
ing, as  we  see,  upon  custom  :  and  when  we  come  to  inquire,  how  these 


THE  SYSTEM  OF  PENAL  LAW.  55 

"  customs"  are  to  be  known,  the  same  author  gives  the  answer,  "  by 
the  judges" — who,  he  says,  "are  the  depositaries  of  the  laws,  the 
living  oracles  who  must  decide  in  all  cases  of  doubt,"  &c.  Here,  then, 
we  see  what  is  our  law.  It  is  "  the  unwritten  customs  of  England," 
which,  from  the  same  authority,  we  are  told,  it  requires  twenty  years 
of  close  study  for  a  judge  to  understand  ;  and  which,  without  fear 
of  incurring  the  charge  of  presumption,  I  will  add,  no  man  ever  did 
or  ever  can  understand — for  this  plain  reason,  that,  in  many  instances, 
it  does  not -exist,  until  the  case  arises  which  calls  for  its  application  ; 
then  it  is  pronounced,  not  by  the  legislative  authority,  but  by  one  of 
these  living  oracles.  It  is  a  maxim  with  English  lawyers,  that  the  com- 
mon law  is  the  perfection  of  human  reason.  No  case,  therefore,  can 
be  supposed  to  be  unprovided  for  by  it,  and  consequently,  whenever 
any  new  case  occurs,  and  no  preceding  response  has  been  given  that 
will  fit  it,  the  judge  must  create  one  ;  and  although  it  has  never  before 
been  spoken,  or  written,  or  applied,  we  must  believe  it,  from  time 
immemorial,  to  have  been  a  part  of  the  common  law;  that  is  to  say,  as 
we  have  just  seen,  the  custom  of  England  :  which  involves  the  absur- 
dity of  supposing  that  to  have  been  immemorial  usage,  which  we  know 
was  never  before  practised  or  heard  of. 

But  this  is  not  the  only  difficulty  or  absurdity  attending  a  reference 
to  the  common  law.  These  oracles,  it  must  be  remembered,  are  not 
given  like  those  of  the  sybil,  in  writing — but  like  most  of  those  of  anti- 
quity, orally.  The  judge  seldom  or  never  writes  his  decision.  The 
words  of  inspiration  are  caught  by  the  reporter,  and  he  publishes  them. 
Here,  it  would  be  supposed,  an  opportunity  is  afforded  of  knowing, 
with  some  certainty,  what  the  law  is.  To  the  people  ?  No  !  The  size, 
the  number,  the  price,  and  the  disgusting  verbosity  of  the  volumes, 
forbid  it.  To  the  lawyers,  then,  at  least  ?  Not  even  to  them  !  The 
same  causes  operate  to  prevent  many  of  them  from  examining  more 
than  an  index  or  abridgement ;  but  even  the  few  who  are  rich  enough 
to  buy,  and  have  had  leisure  to  examine,  those  repositories  of  the  law, 
with  reference  to  a  single  point,  for  a  general  study  of  them  would 
consume  the  longest  life,  even  on  that  single  point  will  find  themselves 
sadly  mistaken  if  they  look  for  a  certainty.  Hear  what  Blackstone — I 
take  my  authority  only  from  professed  admirers  of  this  system — hear 
what  he  says  of  the  credit  that  is  to  be  given  to  these  reports  : — "  From 
the  reign  of  Henry  the  eighth  to  the  present  time,  this  task  (that  of  re- 
porting) has  been  executed  by  many  private  and  contemporary  hands  ; 
who  sometimes  through  haste  and  inaccuracy,  sometimes  through  mis- 
take and  want  of  skill,  have  published  very  crude  and  imperfect,  per- 
haps contradictory,  accounts  of  one  and  the  same  determination." 

Admit,  then,  that  the  judge  pronounces  the  true  precept  of  law,  we 
can  have  no  security  that  it  is  truly  recorded  ;  and  a  word  omitted  or 
transposed,  may  alter  the  whole  sense  of  the  rule.  But  this  is  not  all. 
Let  us  suppose  the  record  to  be  faithfully  made,  what  is  to  be  its  effect? 
Is  it  binding  on  future  judges,  in  similar  cases  ?  In  other  words,  is  it 
law  ?  What  say  our  oracles  on  this  important  question  ?  Blackstone 
tells  us,  "  it  is  an  established  rule  to  abide  by  former  precedents,  but 
with  some  exceptions  :  which  are,  first,  when  the  precedent  is  evi- 
dently contrary  to  reason  ;  secondly,  when  it  is  clearly  contrary  to  the 
divine  law ;  thirdly,  which  seems  to  be  included  in  the  first,  when 
it  is  flatly  absurd  or  unjust."  This  is  the  doctrine  of  the  text. 


56  INTRODUCTORY  REPORT  TO 

Christian,  the  able  commentator  on  this  justly  distinguished  book,  says, 
on  the  contrary,  "  precedents  and  rules  must  be  followed  even  when 
they  are  flatly  absurd  and  unjust,  if  they  are  agreeable  to  ancient 
principles :"  and  he  gives  an  example  which  places  the  justice  of  this 
admired  system  in  a  most  striking  point  of  view.  It  is  a  maxim  of  the 
common  law,  that  all  statutes,  whenever  passed,  refer  to,  and  take 
effect  from,  the  first  day  of  the  session  of  parliament.  Now,  to  exem- 
plify his  rule,  he  says,  if  a  statute  should  have  been  passed  on  the  last 
day  of  the  session,  making  an  act  a  capital  offence  which  before  was 
innocent,  any  one  who  had  done  that  act  between  the  first  and  the  last 
day  of  the  cession,  that  is  to  say,  perhaps  six  months  before  it  was  made 
an  offence,  would  have  been  condemned  and  executed  under  the  law. 
"  This,"  he  adds,  and  every  body  must  agree  with  him,  "  was  flatly 
absurd  and  unjust ;"  but  yet  no  judge  could  declare  that  it  was  not  law; 
and  this  absurdity  and  tyranny,  worthy  of  a  Nero  or  Caligula,  con- 
tinued to  form  a  part  of  the  "  perfection  of  human  reason"  until  the 
year  1793(«),  when  one  step  in  the  road  to  common  sense  was 
made  by  enacting  that  the  statute  should  not  be  in  force  before  it  was 
made,  but  gave  it  effect,  when  it  contained  no  special  provision  on  the 
subject,  from  the  day  on  which  it  passed,  without  any  attention  to  the 
time  in  which  it  was  known  by  promulgation;  so  that  even  at  this  day, 
in  England,  according  to  the  common  law,  a  man  at  a  distance  from 
the  seat  of  government  may  be  punished  for  doing  an  act  which,  in  the 
nature  of  things,  he  could  not  know  to  be  illegal. 

Thus  the  general  assembly  may  form  some  idea  of  the  nature  of  that 
law,  to  which  our  present  system  of  criminal  proceedings  refers  us  for 
the  definition  of  certain  offences,  and  for  the  rules  for  preventing,  try- 
ing, and  punishing  them.  We  see  that  it  consists  of  unwritten  rules, 
promulgated  by  the  judges  by  precedents  often  incorrectly  reported  ; 
of  uncertain  authority  when  known  ;  to  be  followed,  according  to  some 
writers,  however  unjust  or  absurd  ;  and,  according  to  others,  to  be 
modified  by  the  principles  of  reason  and  the  divine  law,  that  is  to  say, 
by  the  caprice,  or  the  bigotry,  or  the  enthusiasm  of  the  judge.  What 
more  uncertain  rules  can  be  referred  to  than  human  reason  and  the 
dogmas  of  religion  ?  What  may  appear  reason  to  one,  is  folly  to 
another;  and  on  no  one  subject  does  the  mind  of  man  take  so  wide  a  range 
as  in  imagination  respecting  the  divine  will. 

But  if  no  other  objection  existed,  that  which  is  contained  in  its  very 
definition,  would,  it  appears,  be  sufficient  to  ask  for  the  substitution  of 
some  other  ; — it  is  unwritten.  If  we  like  its  other  provisions  (and 
very  many  of  them  are  excellent)  let  us,  at  least,  destroy  that  charac- 
teristic, by  reducing  them  to  writing. 

Two  contradictory  objections  are  commonly  raised  to  this  most  im- 
portant operation  :  the  one,  that  the  task  is  impracticable — that  the 
body  of  the  common  law  can  never  be  reduced  to  writing  ;  the  other, 
that  its  rules  are  already  written,  and  that  a  reference  to  the  reporters 
and  commentators  will  give  a  sufficient  knowledge  of  its  provisions. 
Now,  of  these  two  opinions,  one  only  can  be  true  ;  and  if  either  be 
true,  it  presents  a  state  of  things  that  no  reasonable  being  can  wish  to 
see  continued.  If  all  the  precepts  of  the  common  law  cannot  be  re- 
duced to  writing,  then  a  part  of  them  are  not  contained  either  in  the 

(a)  Statute  33  Geo.  III.  c.  13.    . 


THE    SYSTEM  OF  PENAL  LAW.  57 

reporters  or  other  writers,  to  which  we  are  usually  referred.  Where 
are  we,  then,  to  find  this  unrecorded  part? — in  the  unexplored  mind 
of  the  judge.  When  is  it  to  be  promulgated  ? — for  the  first  time 
after  the  case  has  occurred  to  which  it  is  about  to  be  applied.  And 
who  is  to  record  or  remember  it — what  is  to  be  its  effect  and 
authority— in  our  state,  which  of  the  seven  independent  judges  is  to 
be  considered  as  pronouncing  the  true  oracle  when  they  differ  ?  Can 
principle  be  more  completely  abandoned  ;  can  common  sense  and 
common  justice  be  more  effectually  lost  sight  of;  can  confusion  be 
worse  confounded  than  by  this  state  of  things  ?  Take  the  other  alter- 
native. The  precepts  and  principles  of  the  common  law  are  already 
reduced  to  writing.  But  where  are  they  to  be  found  ?  In  voluminous 
reports  which  it  requires  great  diligence  to  collect,  very  large  sums 
of  money  to  purchase,  a  long  life  to  read(#),  and  a  superhuman  in- 
tellect to  understand  and  reconcile  with  each  other  when  they  are  read! 
They  are  to  be  found  in  commentaries  on,  and  abridgements  of,  these 
reports,  scarcely  less  voluminous  ;  in  which  precedents  and  arguments 
may  be  found  for  almost  every  position  that  may  be  taken  by  sophistry, 
or  required  for  an  indiscriminate  defence  of  right  and  wrong  ;  add  to 
this,  that  these  sources  of  information  are  inaccessible  to  three-fourths 
of  the  inhabitants  of  this  state,  being  written  in  a  language  which 
they  cannot  understand  ;  and  that  of  the  other  fourth,  a  very  few 
only  have  the  time  or  the  means  of  applying  to  them  ;  and  you  have 
a  state  approaching  to  that  which  has  been  justly  designated  as  a 
badge  of  the  most  abject  slavery,  one  governed  by  unknown  and  un- 
certain laws. 

But  even  this,  bad  and  absurd  and  oppressive  as  it  is,  this  is  not 
the  worst.  The  words  of  our  statute  which  refer  us  to  this  rule,  call 
it  the  common  law  of  England.  Now  this  common  law  being  estab- 
lished in  a  succession  of  very  remote  ages,  when  manners,  religion, 
society  and  government  were  in  a  totally  different  state  from  that  in 
which  every  succeeding  period  found  them,  it  necessarily  happened 
that  positive  laws  were  made  to  accommodate  it  to  the  change  of  circum- 
stances. Some  of  these  changes  were  made  at  so  remote  a  time,  that 
the  most  learned  antiquary  would  find  it  impossible  to  fix  the  point 
in  any  one  given  subject  where  common  law  first  received  the  aid  of 
positive  enactment  ;  in  other  words,  to  tell  us  what  is  common,  what 
is  statute  law.  And  yet  we  must  at  our  peril  know  this  ;  for  the  first 
is  our  rule  of  action  ;  with  the  second  we  have  nothing  to  do.  Com- 
mon sense  alone  would  show  the  necessity  of  this  research  ;  but  being 
so  happy  as  to  find  it  supported  by  authority,  I  gladly  avail  myself  of 
both.  We  have  reports  of  cases  in  penal  law  for  about  three  years 
only  ;  and  we  have  them  during  that  period,  because  the  same  court, 
of  which  the  decisions  were  reported,  then  had  criminal  as  well  as  civil 
jurisdiction.  Property,  it  seems,  has  not  only  here,  but  in  most  other 
countries,  been  considered  of  so  much  more  consequence  than  reputa- 
tion, liberty,  or  life,  that  while  all  decisions  that  in  the  slightest 

(a)  If  in  the  days  of  Fortescue  twenty  years  of  hard  study  (viginti  annorum  lucubra- 
tiones)  were  required  to  understand  this  law,  then  in  its  primitive  simplicity,  it  is  not  unrea- 
sonable to  calculate  that  the  necessary  term  must  be  quadrupled  by  the  reports,  commen- 
taries, folio  abridgements,  books  of  entries,  essays  and  treatises  of  practice,  which  have 
accumulated  in  the  four  centuries  that  have  since  elapsed. 

H 


58  INTRODUCTORY  REPORT  TO 

degree  affect  the  former  are  collected,  those  which  involve  the  latter 
are  generally  consigned  to  oblivion  ;  or,  in  particular  cases,  obtain  an 
ephemeral  publicity  in  the  gazettes.  The  reason  of  this  will  be  here- 
after discussed.  It  is  here  mentioned  only  to  account  for  the  very 
scanty  means  we  have  of  collecting  authorities  on  these  important 
points.  But  in  that  short  period  to  which  I  refer,  a  decision  took 
place  which  fully  supports  my  position  : — B.  was  indicted  for  forging 
the  name  of  another,  as  an  indorsement,  on  a  promissory  note.  The 
person  whose  name  was  supposed  to  be  forged  was  called  as  a  witness  ; 
he  was  objected  to  as  being  incompetent  by  the  common  law  ;  and 
many  authorities  were  produced,  showing  that  in  England  such  wit- 
nesses had  been  rejected.  It  was  answered,  that  by  the  common  law 
he  was  a  good  witness  ;  that  the  decisions  relied  on  as  authorities  were 
made  since  a  statute  passed  in  the  reign  of  queen  Elizabeth,  which  had 
indirectly  effected  a  change  in  the  common  law.  Of  this  opinion  was 
the  court,  and  the  witness  was  sworn(a).  From  this  it  appears  that 
the  English  authorities  were  rejected  because  they  were  founded  on 
a  change  made  in  the  common  law  by  a  statute  ;  consequently  that  the 
act  of  1805  refers  to  the  common  law,  unamended  by  statute.  The 
first  evil  resulting  from  this,  is  that  to  which  1  have  alluded  ;  the 
necessity  of  drawing,  in  every  contested  case,  the  line  between  the  sta- 
tute and  the  common  law.  Supposing  this  difficult  task  to  be  accom- 
plished, and  that  we  have  reduced  the  latter  to  its  primitive  simplicity 
by  stripping  off  the  statutory  shreds  and  patches  by  which  it  was  dis- 
figured or  adorned,  what  have  we  to  reward  us  for  our  pains  ?  First, 
we  have  the  benefit  of  clergy(b],  which  assures  impunity  to  every 
one  who  can  read,  for  none  of  our  statutes  have  taken  it  away.  Next, 
the  right  of  appeal  in  felony,  and,  as  a  consequence  of  appeal,  the 
trial  by  ordeal  and  battle  ;  for  although  you  have  established  the  trial 
by  jury,  so  had  the  common  law,  and  much  in  the  same  manner  that 
you  have  done,  at  the  option  of  the  party(c).  You  have  the  right  of 
sanctuary,  by  which  every  offender  who  can  escape  to  a  church  or  a 
church-yard,  is  privileged  from  arrest,  and  may  abjure  the  realm. 
You  have  the  right  of  approvement,  by  which  any  criminal  who  can 
in  a  judicial  combat  knock  out  the  brains  of  his  accomplice,  secures  his 
own  pardon.  You  have  the  whole  doctrine  of  outlawry,  and  other  in- 
cidents to  criminal  proceedings,  which  no  advocate  for  the  present 
state  of  things  either  understands,  or  would  venture  to  contend  for  if  he 
did  ;  but  which  they  cannot  avoid  and  must  learn,  and  must  practise, 
if  the  law  is  to  be  executed  according  to  its  plain  letter.  The  judges, 

(a)  1  Mart.  Rep.  214. 

(b)  Should  it  be  objected  that  our  statute,  by  directing  the  punishment  of  death  to  be  in- 
flicted, abolishes  the  privilege  of  clergy  ;  it  is  answered,  that  the  same  statute  introduces 
the  common  law  which  also  directed  the  punishment  of  death,  but  admitted  the  privilege  of 
clergy  as  an  exception.     If,  then,   the  rule  and  the  exception  could  exist  together  under 
the  common  law,  why  can  they  not  under  our  statute  ? 

(c)  The  same  statute  that  gives  us  the  trial  by  jury,  at  the  option  of  the  party,  declares 
that  "  the  method  of  trial"  shall  be  according  to  the  said  "  common  law ;"  but  the  said 
common  law  allowed  both  the  trial  by  battle  and  the  trial  by  jury — and  the  former  has  been 
demanded  in  our  own  day  in  England,  to  the  great  perplexity  and  astonishment  (very  prob- 
ably) of  the  lawyers,   as  Spelman  says  was  formerly  the  case — non  sine  magna  juris  con- 
sultorum  perturbatione.    It  has  within  a  few  years,  I  believe,  beeu  abolished  by  statute. 


THE  SYSTEM  OF  PENAL  LAW.  59 

therefore,  must  dispense  with  it,  and  do  this  to  the  degree  only  that 
they  think  fit  in  each  case.  The  court,  not  the  general  assembly, 
must  legislate,  and  they  must  legislate  after  the  fact(a) ! 

In  offering  these  reflections,  it  is  not  intended  to  excite  prejudice 
against,  or  pass  an  indiscriminate  censure  on  the  common  law  of  Eng- 
land. On  the  contrary,  it  will  be  seen  that  many  of  its  provisions  are 
transferred  into  the  system  which  has  been  prepared  ;  and  that  among 
them  so  taken  from  that  law,  are  those  which  the  most  effectually  se- 
cure liberty,  reputation  and  property.  But  the  subject  is  discussed  to 
show  that  your  predecessors  were  well  founded  in  the  assertion,  that 
our  present  laws  being  neither  certain  nor  accessible,  were  defective  in 
at  least  two  of  the  essential  requisites  to  a  good  system. 

The  next  defect  in  our  present  laws  was  that  which  the  legislature 
had  in  view,  when  they  declared  that  one  object  of  the  projected  code 
was,  to  "remove  doubts  relative  to  the  authority  of  any  parts  of  the 
penal  law  of  the  different  nations  by  which  this  state,  before  its  inde- 
pendence, was  governed."  Were  there  any  such  doubts,  and  if  there 
were,  ought  they  to  be  removed  ?  It  is  an  established  rule  of  national 
law,  that  on  the  transfer,  or  conquest  of  a  country,  the  municipal  laws 
remain  in  force  until  they  are  expressly  changed  by  the  new  govern- 
ment^). When  the  treaty  of  1763,  by  which  Louisiana  was  ceded  by 
France  to  Spain,  was  carried  into  effect  in  1769,  the  latter  power  acted 
on  this  principle,  and  solemnly  promulgated  its  own  laws(c).  France, 
when  that  power  in  1S03  received  the  actual  transfer  of  the  country 
from  Spain,  in  execution  of  the  treaty  of  St  Ildefonso,  took  only  a  tem- 
porary and  provisional  possession,  in  order  to  deliver  it  to  the  United 
States  according  to  the  provisions  of  the  treaty  of  Paris.  No  material 
alteration  was  made  in  the  laws  by  this  operation. 

The  first  act  of  sovereignty  done  by  the  United  States  after  the 
cession,  was  in  perfect  accordance  with  the  principles  laid  down.  For 
the  law  which  authorized  the  president  to  take  possession  of  the  pro- 
vince^), recognizes  the  force  and  validity  of  the  existing  laws,  by  vest- 
ing in  officers  to  be  appointed  by  the  president,  the  same  military,  civil 
and  judicial  powers  that  were  exercised  under  the  Spanish  government. 
The  province  continued  under  its  old  laws,  administered  by  new  func- 
tionaries, from  the  time  of  the  transfer  in  December  1803,  until  the 
1st  of  October  1S04,  when  the  law  giving  us  the  first  grade  of  terri- 
torial government(e)  took  effect.  This  act  organized  the  executive, 
legislative  and  judiciary  branches  of  a  territorial  government.  It 
extended  to  the  territory  the  operation  of  certain  laws  of  the  United 
States,  fixed  the  qualifications  of  jurors,  and  secured  the  right  of  trial 
by  jury,  and  gave  the  writ  of  habeas  corpus  ;  but  so  far  from  repealing 
any  of  the  former  laws,  it  contains  an  express  provision  that  all  laws 
in  force  in  the  territory  at  the  passage  of  the  act,  and  not  inconsistent 
with  it,  should  continue  in  force  until  altered,  modified,  or  repealed  by 
the  legislature. 

(a)  Our  constitution  has  very  wisely  guarded  against  ex  post  facto  legislation   by  the 
general  assembly.     Was  it  intended  that  the  judiciary  should  exercise  it  ? 
(ft)  1  Black.  Com.  107;  Cowp.  Rep.  204. 
<c)  O'Reilly's  Pro.  1769. 

(d)  Act  of  31st  October  1803. 

(e)  Act  passed  26th  March  1804,  to  take  effect  1st  October  following. 


60  INTRODUCTORY  REPORT  TO 

The  next  change  in  the  political  organization  of  the  territory  pro- 
duced none  in  our  civil  or  penal  laws,  the  act  giving  us  the  second 
grade  of  government(«)  containing  the  same  clause  for  continuing  them 
"until  altered,  modified,  or  repealed  by  the  legislature."  And  when 
the  trammels  of  territorial  government  were  thrown  off,  our  constitu- 
tion carefully  preserved  the  same  provision(i).  Thus  by  uninterrupted 
succession,  the  laws  by  which  the  Spanish  province  of  Louisiana  was 
governed,  with  the  exception  only  of  such  as  were  inconsistent  with 
the  several  enumerated  acts,  were  continued  through  all  the  different 
changes  of  government,  and  unless  since  repealed,  altered  or  modified, 
are  the  law  of  the  land  at  this  day.  That  the  penal  laws  formed  no 
exception  is  evident  from  the  general  words  which  comprehend  them, 
and  also  from  some  of  the  earliest  acts  of  the  legislative  council,  which 
recognize  them  in  express  terms. 

One  of  the  first  laws  passed  by  the  legislative  council(c)  declares, 
that  "whenever  a  conviction  had  taken  place  or  might  take  place,  for 
any  crime  which  by  the  existing  laws  of  the  territory  would  subject 
the  criminal  to  be  sentenced  to  the  galleys  for  life,  that  such  punish- 
ment might  be  commuted"  &c.  Now  as  no  penal  law  whatever  had 
then  passed  since  the  new  government  was  established,  and  a  sentence 
to  the  galleys  was  unknown  in  our  jurisprudence,  the  "  existing  laws" 
here  mentioned  must  have  meant  the  Spanish  laws — and,  of  course,  the 
Spanish  penal  laws. 

Another  act  provides(^),  that  no  suit,  either  civil  or  criminal,  shall 
be  prosecuted  against  any  commandant  for  any  act  clone  subsequent  to 
the  30lh  September(e)  of  that  year,  by  virtue  of  a  previous  appoint- 
ment ;  with  proviso,  that  it  shall  not  protect  him  from  prosecution  for 
fraud  or  crime  under  colour  of  office.  But,  at  that  time,  there  were 
no  other  than  the  Spanish  laws  for  punishing/rawo?  or  crime ;  there- 
fore, here  again  the  existence  of  those  laws  is  acknowledged. 

Again,  on  the  4th  May  1805,  an  act  was  passed  for  the  punish- 
ment of  crimes  and  misdemeanors,  which,  after  specifying  a  number 
of  offences,  directs,  by  the  thirty-third  section,  that  all  the  offences 
therein  named  shall  be  construed  and  tried  according  to  the  common 
law  of  England  :  and  by  a  subsequent  statute,  passed  in  the  same  year, 
two  or  three  other  crimes  are  added  to  the  list;  and  it  is  further  en- 
acted, "  that  all  other  crimes,  offences  and  misdemeanors,  committed 
by  free  persons,  and  not  provided  for  by  this  act  or  the  one  to  which  this 
is  a  supplement  (act  of  4th  May  1805),  shall  be  punished,  and  shall 
be  prosecuted  and  tried  according  to  the  common  law  of  England." 
There  were,  then,  "other  crimes,  offences  and  misdemeanors,"  which 
were  not  enumerated  in  the  only  two  statutes  that  had  then  been 
passed.  Against  what  law  were  they  offences  ?  Clearly  against  the 
pre-existent  Spanish  law.  This  section  was  repealed  the  next  year. 

(a)  Act  further  providing  for  the  government  of  the  territory  of  Orleans,  2d  March 
1805. 

(&)  llth  section  4th  art.  Constitution  of  Louisiana. 

(c)  Act  2d  February  1805,  sect.  1.     2  Martin's  Dig.  226. 

(d)  Act  13th  December  1804,  sect.  1.     2  Martin's  Dig.  106. 

(e)  The  reason  why  the  30th  September  is  the  date  referred  to  is,  because  on  the  day 
after,  the  law  organizing  the  territorial  government  went  into  operation  ;   and  it  was  doubted 
whether  the  acts  done  after  that  time  by  officers  previously  appointed,  were  valid. 


THE  SYSTEM  OF  PENAL  LAW.  61 

The  repeal  left  things  in  the  unsettled  state  they  were  in  before  the 
section  passed,  as  to  the  mode  of  procedure  ;  but  it  did  not  change 
the  expression  of  legislative  opinion  as  to  the  existence  of  the  ancient 
laws. 

But  this  is  not  all.  The  acts  I  have  quoted  were  passed  under  the 
first  grade  of  government,  when  the  legislative  council  was  appointed 
by  the  president.  Under  the  second  the  elective  franchise  was  ex- 
tended to  the  people  ;  and  one  of  the  first  acts  of  their  representatives 
was  not  only  to  acknowledge  the  same  laws,  but  to  vest  in  the  superior 
court  of  the  territory  the  power  of  punishing  crimes  that  were  com- 
mitted under  the  Spanish  and  French  governments(a). 

Thus,  the  principles  of  national  law,  the  acts  of  congress,  the  laws  of 
territorial  legislatures  established  by  them,  and  the  constitution  of  the 
state,  all  concur  in  proving  that  the  ancient  civil  and  penal  laws  of  the 
province  continued  in  force,  except  in  those  particulars  in  which  they 
were  modified  by  our  institutions,  or  repealed  by  our  laws.  It  becomes, 
then,  highly  important  to  determine  what  parts  of  those  ancient  laws 
are  thus  modified  ;  which  of  them  have  been  repealed  ;  and  what  are 
the  provisions  of  those  which  still  exist  unaltered.  If  all  those  laws 
have  been  abrogated,  there  was  no  foundation  for  the  apprehensions 
expressed  by  your  predecessors  on  that  subject.  If  the  abolition  is  ex- 
press as  to  some  and  presumptive  only  (and  of  course  doubtful)  as  to 
others,  their  apprehensions  were  well  founded,  and  the  doubts  they  en- 
tertained ought  to  be  removed  ;  and  if  any  parts  of  that  law  have  nei- 
ther been  expressly  or  impliedly  repealed,  all  such  parts  being  still 
virtually  in  force,  ought  to  be  examined;  and  if  good,  to  be  re-enacted 
in  a  language  that  may  be  understood  ;  or,  if  bad,  to  be  repealed. 

Laws  may  be  repealed  either  expressly  or  by  implication.  But 
there  is  nothing  that  has  the  appearance  of  an  express  repeal  in  the  case 
before  us  ;  unless  it  be  the  clauses  contained  in  the  several  recited  acts 
which  continue  the  existing  laws,  with  the  exception  of  such  as  are  in- 
consistent with  those  acts  respectively.  But  this,  in  truth,  is  no  more 
than  would  have  been  effected  without  that  clause.  For  a  repugnancy 
between  the  old  and  the  new  law  is  an  implied  repeal  of  the  former; 
and  this  is  the  only  eriterion(6)  by  which  we  can  judge  that  there  is 
such  repeal  ;  for  it  has  been  decided(c)  in  our  courts,  in  conformity 
with  British  decisions,  that  affirmative  statutes,  not  incompatible  in 
their  execution  with  the  old  law,  and  containing  no  negative  or  repeal- 
ing words,  do  not  abrogate  the  old  law. 

The  Spanish  laws,  then,  have  not  been  expressly  repealed.  Have 
they  been  so  by  implication  ?  Certainly  they  have  not  been  so  alto- 
gether ;  for  there  is  not  the  least  repugnancy  between  many  of  them 
and  our  constitution  or  laws.  What  classes,  then,  of  them  have  been 
repealed  ? 

First,  it  would  seem  clear  that  all  those  are  abrogated  by  the  mere 
change  of  government^),  which  relate  to  the  prerogative  of  the  crown, 
and  to  the  mode  of  making  the  appointment  of  officers.  As  to  the  du- 

(a)  Laws  1st  territorial  legislature,  3d  June  1806. 
(6)  1  Black.  Com.  89. 

(c)  1  Martin's  Rep.  (new  series)  p.  74. 

(d)  Vattel.lib.  3,  c.  13,  p.  199. 


62  INTRODUCTORY  REPORT  TO 

ties  of  such  officers,  in  the  administration  of  justice  and  preservation  of 
peace,  they  must  be  performed  by  those  appointed  by  the  new  power, 
having  corresponding  functions,  whether  under  the  old  name  or  with 
a  new  designation.  Thus,  soon  after  possession  was  taken  by  the 
French  in  1803,  Mr  Laussat,  the  French  prefect,  appointed  a  munici- 
pality to  exercise  the  powers  of  the  Spanish  cabildo  within  the  city, 
which,  on  the  transfer  to  the  United  States,  was  continued  with  the 
same  attributes  until  the  town  was  incorporated  by  the  legislative  coun- 
cil. Thus,  too,  the  governor,  immediately  after  the  transfer,  appointed 
an  alguazil  mayor  and  commandants,  who  were  to  exercise  as  far  as 
was  compatible  with  the  new  order  of  things,  the  same  functions  with 
the  officers  of  that  name  under  the  Spanish  government. 

Secondly,  all  those  laws  are  abrogated  which  would  interfere  with 
any  right  secured  by  the  constitution  or  laws  of  the  United  States  or  of 
the  state  ;  such  as  the  liberty  of  the  press,  the  right  to  bear  arms,  the 
right  of  having  counsel,  of  trial  by  jury,  and  others  of  that  description. 

Thirdly,  I  am  inclined  to  concede  that  all  those  laws  are  virtually 
repealed  which  bear  upon  the  same  offences  that  are  prohibited  by  laws 
passed  since  the  cession,  although  there  may  be  nothing  absolutely  re- 
pugnant between  the  two  penalties  ;  there  being,  in  my  opinion,  a  dif- 
ference between  acts  passed  by  the  same  government  on  the  same 
subject,  (all  of  which  are  considered  as  one  act),  and  the  acts  of  a  new 
power  legislating  upon  an  offence  which  had  been  defined  by  the 
jurisprudence  of  a  former  power  :  in  which  latter  case  I  am  inclined  to 
think,  that  the  new  legislation  ought  to  be  considered  as  expressing  its 
whole  will,  unless  there  is  an  express  or  implied  reference  to  the  old 
law.  And  finally,  the  law  of  evidence,  the  mode  of  trial,  the  rules  of 
procedure,  and  definition  of  each  of  the  offences  enumerated  in  the  act 
of  4th  May  1805,  are  changed,  so  far  as  relates  to  the  offences  so  enu- 
merated, because  there  is  a  clear  repugnancy  between  the  old  law  and 
that  statute  in  relation  to  those  particular  offences. 

The  most  liberal  rules  of  constructive  repeal  can  go  no  further  ;  yet, 
discarding  all  that  comes  within  these  rules  and  all  that  is  expressly 
repealed,  when  we  look  into  the  former  law,  enough  of  it  will  remain 
to  make  us  reverence  the  wisdom  which  directed  that  all  doubts,  as  to 
its  existence,  should  be  removed.  It  would  be  difficult,  perhaps  im- 
possible, to  give  an  accurate  list  of  the  penal  laws  of  Spain  which  re- 
main unrepealed,  or  to  furnish  a  complete  analysis  of  their  provisions. 
But  this  very  uncertainty  is  alone  a  sufficient  motive  to  justify  legisla- 
tive interference.  Some  cases,  however,  may  be  ascertained  ;  let  us 
examine  them.  The  investigation  is  both  curious  and  instructive,  and 
it  will  produce  more  serious  results  than  at  first  sight  might  be  sup- 
posed. 

The  laws  designating  offences  against  sovereignty  and  the  public 
peace  have  been  generally  provided  for  by  our  statutes,  or  by  the  con- 
stitution. They,  therefore,  come  within  the  rules  I  have  laid  down, 
and  may  be  considered  as  repealed. 

But  before  we  enter  further  into  the  very  cursory  examination  which 
it  is  proposed  to  make  of  such  offences,  affecting  reputation,  person, 
property  or  religion,  as  by  the  rules  laid  down  may  be  supposed  yet 
to  be  in  force,  an  important  title  presents  itself,  which  has  no  corres- 


THE  SYSTEM  OP  PENAL  LAW.  63 

ponding  division  in  our  statute  law,  or  that  system  to  which  it  refers. 
It  operates  on  the  condition  or  standing  in  society  of  those  who  come 
within  its  purview.  It  is  called  in  the  Spanish  law,  "  Enfamamiento;" 
and,  from  its  definition,  is  a  species  of  dishonour  attached  to  persons,  as 
well  from  their  birth  or  course  of  life,  as  from  having  incurred  the 
animadversion  of  the  magistrates,  without  being  convicted  or  even  ac- 
cused of  any  offence  ;  as  from  the  condemnation  for  an  infamous  crime. 
Political  disabilities  attended  this  state,  which  our  institutions  have,  in 
some  instances,  virtually  repealed  ;  but  the  note  of  ill  fame  may  still 
remain,  and  greatly  influence  the  comfort  and  respectability  of  those  to 
whom  it  is  thus  attached  by  law,  if  those  laws  are  still  in  force.  The 
subject  forms  the  sixth  title  of  the  seventh  book  of  the  Partidas.  By 
the  second  law  of  this  title,  the  innocent  fruit  of  an  illegal  marriage, 
the  son  whom  a  father  may  justly  or  unjustly  have  accused  in  his  testa- 
ment, the  suitor  to  whom  the  judge  may,  in  court,  have  addressed  an 
admonition  to  amend  his  life,  the  advocate  who  may  have  been  warned 
not  to  bring  a  false  accusation,  the  man  of  good  credit  who  availed 
himself  of  his  character  to  ruin  that  of  another  by  slanders,  and  the  un- 
faithful depositary,  were  all  declared  infamous.  By  the  third  law,  not 
only  the  wife  unfaithful  to  a  living  husband,  but  she  who  forgets  a 
dead  one  in  the  arms  of  a  second  before  her  year  of  mourning  is  expired, 
together  with  her  father,  if  he  consent  to  the  marriage,  and  the  too  im- 
patient successor  of  the  deceased,  come  within  the  penalties  of  the  law. 
The  following  law  confounds  in  the  same  indiscriminate  class  of  infamy, 
procurers,  comedians,  mountebanks,  usurers,  recreant  knights,  foresworn 
promise-breakers,  gamblers  and  buffoons.  The  exclusion  from  office 
of  all  these  ill-associated  descriptions  of  persons  is,  perhaps,  remedied 
by  our  constitutional  laws;  but  their  infamy  creates  an  incapacity  to 
testify,  and  this  again  is  partially  counteracted  by  the  reference  to  the 
English  rules  of  evidence  in  certain  enumerated  crimes.  But  in  the 
offences  not  enumerated  in  the  act  of  January  1805,  beyond  which, 
as  I  shall  show,  the  reference  to  the  English  law  does  not  extend,  and 
in  all  civil  cases,  what  is  to  take  away  the  disability  to  testify  ? 
Our  civil  code(a)  renders  those  incapable  whom  the  law  deems 
infamous.  What  law  ?  If  the  answer  to  this  important  question  be, 
as  I  think  it  must  be,  the  unrepealed  law  by  which  the  land  was  go- 
verned; if  there  should  be  a  doubt  on  that  subject;  do  those  who  flatter 
you  with  dissertations  on  the  perfection  of  your  present  laws,  who  cry 
out  "  peace,  peace,  when  there  is  no  peace,"  do  these  blind  guides  know 
the  depth  of  the  pit  to  which  their  counsels  are  directing  you  ?  Have 
they  calculated,  or  can  they  not  perceive  the  evils  attendant  on  this 
state  of  things  in  this  one  particular  ?  Let  it  be  remembered  that  these 
disabilities  attach  not  upon  conviction  only(6),  but  from  the  fact.  Let 
us  suppose,  then,  that  a  usurer  should  be  appointed  to  an  important 
office,  and  it  becomes  the  interest  of  an  individual  to  make  this  excep- 

(a)  Art.  2260.   See  also  the  act  establishing  the  superior  court,  sec.  10, — "  No  witness,  of 
the  age  of  discretion,  shall  be  disqualified  from  testifying  on  the  ground  of  being  incompetent, 
unless  such  witness  be  at  the  time  of  producing  him,  interested  or  infamous." 

(b)  This  law  confirms  the  opinion  that  a  usurer  is  ipso  facto  infamous,  without  any  con- 
viction, and  as  the  law  does  not  distinguish  whether  it  speaks  of  open  or  secret  usury,  it 
must  be  understood  of  all."    Greg.  Lopez,  uote  on  the  4th  law,  and  he  concludes,  twit 
ergo  in  magno  periculo  usurarii. 


64  INTRODUCTORY  REPORT  TO 

lion  to  his  official  acts,  will  it  be  satisfactorily  answered  by  saying  that 
the  constitution  sets  no  bounds  to  the  appointing  power  ?  But,  it  may 
be  replied,  the  same  constitution  continues  all  laws  which  were  in  force 
at  the  time  of  its  adoption  until  they  shall  be  repealed;  but  the  law 
declaring  infamous  persons  incapable  of  exercising  office  has  never 
been  repealed;  therefore,  if  the  pre-existing  law  excluded  certain  per- 
sons as  being  infamous,  there  is  nothing  in  the  constitution  that  takes 
away  the  disability.  With  respect  to  elective  offices  it  is  different; 
where  the  constitution  enumerates  certain  qualifications,  it  is  reasonable 
to  suppose  it  expresses  all  that  are  required. 

Should  it  be  thought,  however,  that  the  Spanish  law  creates  no  dis- 
qualification to  office,  the  more  important  objection  as  applied  to  wit- 
nesses remains.  In  the  list  of  exclusions,  how  many  are  enumerated 
whom  it  would  be  in  the  highest  degree  unjust  and  absurd  to  render  in- 
competent, were  a  law  now  to  be  made  on  the  subject  ?  The  accidental 
circumstance  of  extra-matrimonial  birth — following  a  profession  that 
has  been  ennobled  by  Roscius  and  Garrick  and  Talma — or  one  that, 
although  requiring  neither  genius  nor  learning,  has  yet  occasionally 
had  the  sanction  of  great  names  in  ancient(a)  and  modern  times  for  its 
practice — receiving  an  undeserved  reprimand  from  a  choleric  judge — 
solacing  the  grief  of  a  widow  before  the  time  permitted  by  law  for 
drying  up  her  tears, — are  certainly  not  acts  that  render  one  unworthy 
of  belief;  not  to  speak  of  the  numbers  who  would  be  excluded  under 
the  exception  of  gambling,  or  the  other  incapacities  specified  in  the  law. 
Yet  one  of  these  may  be  the  only  witness  to  a  transaction  on  which 
fortune  may  depend,  or  to  exculpate  from  a  charge  which  may  effect 
reputation  or  life. 

I  have  enlarged  more  on  the  consequences  of  removing  doubts  as  to 
the  existence  of  this  law  because  of  its  general  operation  ;  for  there  is 
scarcely  a  litigated  question  in  which  it  may  not  be  raised,  or  a  person 
accused,  to  whose  interests  it  might  not  prove  fatal.  Let  us  now  ex- 
amine whether  there  are  not  penal  laws,  strictly  so  called,  that  may 
not  be  supposed  still  in  force,  according  to  the  principles  which  have 
been  laid  down. 

The  seventh  title  of  the  seventh  Partidas  treats  of  the  crimen  falsi, 
(falsedades],  and  (among  many  offences  which  might  probably  be 
brought  within  the  purview  of  our  statute  against  forgery,  coining  and 
perjury)  forbids,  under  very  heavy  penalties,  other  acts  which  are  not 
now  considered  to  be  indictable,  but  which  may  or  may  not  be  deemed 
offences  while  our  laws  are  suffered  to  remain  in  their  present  uncer- 
tain state.  Among  these  are  the  following :  the  advocate  is  guilty 
of  this  offence  if  he  betrays  the  secrets  of  his  client,  or  if  he 
designedly  cite  the  law  falsely (6).  The  notary,  or  other  person  is 

(a)  Cato,  the  censor,  would,  under  this  law,  have  been  doubly  disqualified  as  a  witness; 
for,  if  Plutarch  is  to  be  believed,  he  was  not  only  a  usurer  but  a  ****   for  his  own  slaves. 
•'  Teniendo,"  (in  the  expressive  language  of  the  Partidas'  describing  the  offence),  "  sus  sier- 
vas  en  su  casa  faziendolas  fazer  maldad  de  sus  cuerpos  pordineros!"  7  Fart.  tit.  6,  law  4. 

The  list  of  exceptions  would  be  greatly  swelled,  if  the  commentator's  opinion  is  to  be  fol- 
lowed, who  includes  in  the  class  of  usurers  not  only  those  who,  like  Shylock,  deserve  to  be 
"  rated  about  their  moneys  and  their  usances" — but  even  dealers  in  exchange  and  bankers, 
whose  counters,  he  says,  "  are  altars  raised  to  usury  and  oppression. 

(b)  7  Part.  tit.  7, 1.  1. 


SYSTEM  OF  PENAL  LAW.  65 

guilty,  if  he  deny  the  deposit  of  any  mystic  testament  or  other 
writing  ;  if  he  hide  or  deliver  it  to  another  ;  or  if  any  writing  be 
deposited  with  him  to  be  kept  secret,  he  read  or  publish  it(a).  The 
judge,  if  he  knowingly  give  a  judgment  contrary  to  law  ;  the  per- 
son who  says  mass  without  being  ordained,  and  he  who  changes 
his  name  to  one  that  is  more  honourable,  are  guilty  and  punishable  for 
falsehood.  The  next  is  a  falsity  of  rather  difficult  execution,  and  I 
believe  not  made  punishable  by  any  of  our  statutes  :  I  must  give  it  in 
the  words  of  the  Spanish  lawgiver  :  "  Trabajanse(6)  a  las  vegadas  algu- 
nas  mugeres  que  non  pueden  aver  fijos  de  sus  maridos,  de  fazer 
muestra  que  son  prenadas  :  e  quando  llegan  al  tiempo  del  parto  toman 
enganosamente  fijos  de  otras  mugeres  e  meten  los  consigoen  los  lechos, 
e  dizen  que  nacen  dellas,  esto  dizimos  que  es  gran  falsedad  ;  faziendo  e 
poniendo  fijo  ageno  por  heredero  en  los  bienes  de  su  marido  bien  assi 
como  si  fuesse  fijo  delo." 

There  are  other  offences  in  this  class  which  I  do  not  enumerate,  be- 
cause it  may  be  doubtful  whether  they  do  not  come  within  some  of  our 
statutes.  The  punishment  is  banishment,  and  confiscation  of  all  the 
property  of  the  offender  to  his  nearest  ascendant  or  descendant ;  if  he 
have  no  such  relation,  then  to  the  treasury.  A  milder  punishment  is 
inflicted  on  the  person  who(c),  being  appointed  to  divide  lands  or  ap- 
portion other  property  in  dispute,  shall  make  a  partial  division  ;  and 
also  on  the  arbitrator  who  shall  designedly  make  a  false  statement  of 
the  accounts  he  is  appointed  to  settle. 

Under  the  next  head,  of  Homicide(rf),  I  find  the  following  acts  made 
punishable,  which  are  not  so  by  our  statutes. 

The  first  must  be  a  startling  one  to  the  faculty  of  medicine,  as  one  of 
those  I  have  cited  must  be  to  the  gentlemen  of  the  bar(e).  It  recites(y), 
that  "  men  give  themselves  out  to  be  more  skilful  in  physic  and 
surgery  than  they  really  are(^) ;  and  that  by  reason  of  their  being  less 
skilful  than  they  pretend,  some  of  their  patients  die  by  their  fault." 
It,  therefore,  enacts,  that  if  any  physician  shall  give  an  improper  medi- 
cine, or  too  much  of  a  good  one,  or  any  surgeon,  in  dressing  a  wound, 
shall  break  a  bone,  or  divide  an  artery,  and  the  patient  in  one  or  the 
other  case  shall  die,  the  offender  shall  be  banished  for  five  years  and 
forbidden  to  practise.  In  due  order  comes  the  apothecary,  after  the 
physician  ;  without  whose  orders,  if  he  give  a  dose  to  a  person  who 
dies  in  consequence  of  having  taken  it,  the  pharmacopolist  is  guilty  of 
homicide. 

The  destruction  of  our  species  in  the  inchoate  state  of  existence  is 
not  punishable  by  any  of  our  statutes.  It  is  so  by  those  of  Spain,  but 

(a)  7  Part.  tit.  7, 1.  1.  (b)  Ib.  tit.  7,  1.  3.  (e)  Ib.  tit.  7, 1.  8. 

(d)  Ib.  tit.  8,  De  los  Omezillos. 

(e)  As  the  presumption  is  that  every  man  admitted  to  the  bar  knows  the  nature  of  the  law 
he  quotes,  it  might,  perhaps,  be  argued,  that  whenever  he  cited  for  law  that  which  was  not 
law,  he  did  it  designedly,  and  of  course  made  himself  liable  to  the  penalties  of  the  law,  "  de 
las  falsedades,"  which  I  have  quoted.    A  law  full  of  peril  for  the  profession. 

(/)  8  Part.  tit.  7, 1.  6. 

(g)  This  part  of  the  recital  would  apply  to  more  professions  than  one.    As  the  law  is  lim- 
ited, however,  it  behoves  the  advertising  part  of  the  faculty  particularly  to  discover  whether 
it  be  in  force. 
I 


66  INTRODUCTORY  REPORT  TO 

they  contain  a  provision  which  I  have  not  seen  in  any  other  code — that 
if  death  is  caused  by  any  medicines  or  herbs,  given  for  the  laudable 
purpose  of  procuring  an  heir  to  the  childless,  it  is  a  punishable  offence. 
The  title  of  Defamation  (Deshonras)(a)  contains  some  things  well 
worthy  of  attention  in  the  disquisition  we  are  now  making.  It  divides 
defamation  into  two  kinds,  by  word  or  by  deed.  Both  are  made  pun- 
ishable: and  the  definition  includes  every  thing  that  is  falsely  said  or 
done  to  dishonour  another.  Defamation  by  deed  includes  writing,  print- 
ing, gestures,  and  all  other  acts  done  with  ;,the  same  intent,  including 
such  as  would  come  within  the  English  definition  of  assault  and  battery. 
One  of  these  laws,  although  perhaps  somewhat  too  strict  for  the  free- 
dom of  modern  manners,  might,  in  our  days,  find  some  careful  guar- 
dian, jealous  husband,  or  prudent  father  to  put  it  in  force,  if  it  should 
be  deemed  one  of  those  that  have  lost  its  use,  not  its  authority;  and  I 
transcribe  it  that  the  gay  gallants  who  are  subject  to  its  penalties,  may 
know  the  peril  of  their  ways: 

"Women,"  says  the  preamble,  "whether  widows,  wives  or  maids, 
who  live  virtuously  in  their  houses  with  an  honest  fame,  are  frequently 
injured,  grieved  and  dishonoured  by  men  who  take  divers  means  of 
doing  so.  Some  there  are  who  are  continually  whispering  to  them, 
visiting  frequently  at  their  houses,  and  following  them  in  the  streets  to 
the  church  or  other  places  to  which  they  go;  others  who  dare  not  pay 
those  public  attentions,  secretly  send  jewels  to  them  and  to  the  per- 
sons with  whom  they  live,  for  the  purposes  of  seduction;  and  others 
again,  strive  to  corrupt  them  by  the  instrumentality  of  infamous  agents, 
or  by  other  unlawful  arts.  By  these  means  the  weak  are  led  astray, 
and  the  virtuous  are  suspected  of  evil  communication  with  those  who 
pay  them  such  attentions.  Wherefore,  we  hold  that  those  who  con- 
duct themselves  in  this  manner  do  great  wrong  and  dishonour,  not 
only  to  the  women,  but  to  their  parents,  their  husbands  and  other  re- 
lations; and  we  command  that  whoever  in  any  such  manner  offend, 
shall  be  fined  for  the  benefit  of  the  woman  who  is  dishonoured:  and 
moreover,  the  judge  shall  admonish  him  who  thus  follows  and  dis- 
honours a  woman,  that  he  do  so  no  more,  and  that  he  desist  from  such 
folly,  under  the  penalty  of  more  serious  penalty  if  he  do  not  desist." 

Among  the  other  evils  which  are  considered  as  reflecting  dishonour 
on  whom  they  were  practised,  are  the  school-boy  tricks  of  shutting 
another  out  of  his  chamber  and  sealing  the  door,  smoking  out  the  neigh- 
bour in  the  story  above*  you,  or  throwing  water  on  him  who  is  below. 
Contemptuously  throwing  down  a  book  in  the  presence  of  the  author, 
is  a  dishonour  under  the  law,  as  well  as  accusing  one  of  theft ;  but  from 
this  last  the  astrologer,  who  is  consulted  to  find  out  stolen  goods,  is 
exempted,  if  he  be  a  true  astrologer,  but  not  if  he  is  a  pretender  to 
that  noble  art. 

It  is  difficult,  in  reviewing  some  of  these  laws,  to  preserve  the  gravity 
required  by  the  general  subject;  but  it  was  deemed  necessary  to  show 
in  what  manner  trivial  as  well  as  more  serious  acts  were  confounded  in 
the  laws,  to  which  we  may,  by  no  forced  construction,  be  still  liable. 
Some  of  those  which  remain  are  of  a  graver  nature. 

Injuries  against  the  peace  are  provided  for  in  a  separate  title  (de  las 

(a)  7  Part.  tit.  9. 


THE  SYSTEM  OF  PENAL  LAW.  67 

Fuerc,as)(a).  Most  of  them  are  embraced  by  our  statutes.  Some, 
however,  are  not;  and  of  these  last  only  it  is  necessary  to  speak.  "One 
of  these  is  the  forcible  entry  into  the  possession  of  real  or  personal  pro- 
perty; for  which  the  penalty  is  the  loss  of  the  property,  if  the  party 
had  any  in  the  thing  or  land  forcibly  taken,  and  its  value,  if  he  had 
none.  The  same  law  applies  to  the  tenant  who  holds  over  by  force; 
and  the  borrower  who,  without  paying  the  debt,  shall  forcibly  resume 
his  pledge. 

In  the  title  of  Theft  there  is  one  remarkable  provision;  by  which 
common  gamblers  are  exempted(6)  from  punishment  for  theft,  or  any 
other  crime,  except  murder,  which  they  may  commit  in  a  house,  the 
master  of  which  receives  them,  knowing  their  character.  Another 
makes  it  a  punishable  offence  to  remove  a  land-mark. 

The  sixteenth  title,  of  Fraud,  specifies  a  number  of  acts  of  this 
nature,  all  of  which  are  punishable  by  our  statute;  and  require  no  other 
remark,  than  that  our  modern  professors  cannot  claim  the  merit  of 
originality,  several  of  their  most  approved  stratagems  appearing  by 
these  laws  to  have  been  practised  as  early  at  least  as  the  thirteenth 
century. 

Offences  against  morals  have  not  attracted  the  attention  of  our  legis- 
lature. We  have  but  one  statute  on  the  subject.  In  the  Spanish  law 
there  are  many.  Adultery  is  made  a  crime.  The  faithless  wife  is 
punished  with  stripes  and  confinement(c)  for  life  in  a  convent.  Her 
seducer  with  death.  The  husband  may  forbid  the  person  he  suspects 
of  a  design  on  his  domestic  peace  to  visit  or  speak  to  his  wife;  and  any 
interview  after  this  admonition,  is  conclusive  proof  of  guilt(d).  The 
guardian  of  a  female  orphan  who  marries  his  ward,  or  gives  her  to  his 
son,  is  guilty  of  this  offence(e). 

One  of  our  statutes  makes  incest  a  crime,  punishable  by  imprison- 
ment for  life;  but  as  it  gives  no  definition  of  the  offence,  a  reference  to 
the  Spanish  law  may  be  found  necessary.  This  defines  the  crime  to  be 
an  illicit  connexion  between  relatives  unto  the  fourth  degree  of  the  can- 
onical law,  by  consanguinity  or  affinity,  expressly  including  the  sisters- 
in-law  and  brothers-in-law;  and,  by  a  subsequent  disposition(/)  a  con- 
nexion between  persons  who  were  sponsors  for  the  same  child 
(compadres  y  commadres)  incurred  the  same  penalty.  The  punish- 
ment was  the  same  as  that  of  adultery,  if  the  offence  were  committed 
without  marriage;  but,  if  after  marriage,  banishment  for  a  nobleman, 
with  the  addition  of  stripes  f&r  other  offenders. 

Seduction  of  a  woman(g-)  of  good  fame,  incurs  forfeiture  of  property 
and  stripes.  The  husband  who  sells  his  own  honour  and  the  virtue  of 
his  wife,  the  agent(A)  in  the  seduction  of  a  woman  of  virtue,  and  those 
who  educate  children  for  the  purpose  of  public  prostitution,  are  pun- 
ishable with  death. 

As  the  legislation  of  which  I  am  giving  a  partial  review  was  made 
in  the  thirteenth  century,  it  is  not  surprising  to  find  that  astrology, 
witchcraft  and  incantations,  love-powders  and  wax  images,  make 

(a)  7  Part.  tit.  13.  (6)  Ib.  tit.  14,  lib.  6.  (c)  Ib.  tit.  17, 1. 13. 

(d)Ib.  1.12.  (c)Ib.l.6. 

(/)  Nueva  Recopilacion,  lib.  8,  tit.  20,  1.  7. 
(g)  7  Part.  tit.  19.  (h)  Ib.  tit.  22. 


68  INTRODUCTORY  REPORT  TO 

a  figure  in  it.  Divination  is  a  capital  offence,  except  by  astronomy, 
which  is  not  only  permitted,  but  praised  as  one  of  the  seven  liberal  arts, 
"  because  the  conjectures  and  presages  that  are  made  by  this  art  are 
drawn  from  the  natural  course  of  the  planets  and  stars,  and  are  taken 
from  the  books  of  Ptolemy  and  other  sages  who  treat  of  this  science." 
None,  however,  but  adepts  are  to  meddle  with  this  ;  all  false  pretend- 
ers to  it,  witches,  sorcerers,  fortune-tellers  of  every  description, 
enchanters  who  raise  the  spirits  of  the  dead,  were  capitally 
punished  ;  but  with  the  proviso,  that  if  the  object  of  the  exorcism  or  of 
the  black  art  be  to  cast  out  a  devil,  to  preserve  the  crop  from  hail,  or 
from  lightning,  or  from  insects,  or  for  any  other  good  object,  the  case 
is  altered,  and  instead  of  punishment  the  operator  is  entitled  to  reward. 

The  subject  of  the  few  other  laws  of  which  I  shall  speak  which  were 
in  force  here  on  the  change  of  government,  is  Religion.  There  is  a. 
general  impression,  so  firmly  established  as  almost  to  amount  to  con- 
viction, not  only  that  all  former  laws  on  this  subject  are  repealed,  but 
that  no  law  can  constitutionally  be  passed  subjecting  any  one  to  penal- 
ties for  his  religious  belief,  or  giving  any  preference  to  one  religion  over 
another.  It  is  to  be  lamented  that  this  persuasion  is  unfounded.  For 
however  we  might  rely  on  the  enlightened  spirit  of  the  age  to  prevent 
the  passage  of  such  laws,  y*et  the  interest  in  question  is  one  so  essential 
to  the  happiness  and  peace  of  the  people,  that  it  is  not  only  unfortunate 
but  extraordinary,  that  the  liberty  of  conscience  should  have  been  over- 
looked when  the  other  great  interests  were  secured  by  the  constitu- 
tional compact. 

This  omission  is  the  more  surprising,  because  all  the  several  laws 
and  compacts  regulating  our  political  state,  prior  to  our  constitution, 
have  contained  stipulations  on  this  head.  The  treaty  of  Paris  declares, 
that  until  the  inhabitants  of  the  ceded  territory  shall  be  admitted  into 
the  union,  they  shall  be  maintained  in  the  free  enjoyment  of  the  reli- 
gion they  profess.  The  law  establishing  the  first  grade  of  government, 
and  the  ordinance  which  gave  the  second,  both  contain  restrictions  on 
the  legislative  power  intended  to  secure  religious  liberty.  But  our 
constitution,  careful  of  every  other  right,  descending  to  minutiae  which 
would  seem  to  trench  on  ordinary  legislative  power  in  other  cases,  is 
silent  in  this.  That  of  the  United  States  does  not  supply  the  deficit ; 
it  only  limits  the  powers  of  congress  on  that  subject,  but  imposes  no 
restraint  on  those  of  the  states. 

In  the  examination  of  this  subject,  which  I  have  made  with  solicitude, 
there  are  two  arguments  :  one  that  might  be  used  to  show  that  the  old 
laws  were  repealed  ;  the  other  that  there  exists  a  restriction  on  the 
powers  of  the  legislature.  I  state  them  with  pleasure,  and  hope  most 
sincerely  that  they  may  always  be  deemed  conclusive  with  others,  al- 
though I  regret  to  say  they  are  not  so  with  me. 

First,  as  to  the  repeal.  The  act  of  1804,  giving  us  the  first  grade 
of  government,  contains  the  following  provision:  "The  governor 
and  council  shall  have  power  to  alter,  modify  or  repeal  the  laws  which 
may  be  in  force  at  the  commencement  of  this  act.  Their  legislative 
powers  shall  also  extend  to  all  the  rightful  subjects  of  legislation  ;  but 
no  law  shall  be  valid  which  is  inconsistent  with  the  constitution  or 

. 
(a)  Lib.  8,  (it.  3, 1.  5.    Recop.  dc  Caslello.  7  Part,  tit.  23, 1.  1,  2  and  3. 


THE  SYSTEM  OF  PENAL  LAW.  69 

laws  of  the  United  States,  or  which  shall  lay  any  person  under  re- 
straint, burthen,  or  disability  on  account  of  his  religious  opinions,  pro- 
fessions or  worship  ;  in  all  of  which  he  shall  be  free  to  maintain  his 
own,  and  not  burthened  for  those  of  another." 

I  fear  that  the  restriction  against  laws  upon  the  subject  of  religion, 
by  the  true  construction  of  this  clause,  operates  prospectively  only  on 
the  laws  that  might  thereafter  be  passed  by  the  legislative  council ;  if 
so,  it  causes  no  repeal  ;  for  the  eleventh  section  provides  for  the  con- 
tinuance of  the  laws  in  force  in  the  territory,  except  those  that  are 
inconsistent  with  it.  Now  if  the  restriction  is  prospective  only,  the 
former  laws  are  not  inconsistent  with  it.  Should  this,  however,  be  a 
repeal,  it  is  an  implied  one,  and  nothing  of  such  importance  ought  to 
be  left  to  implication. 

The  restriction  on  the  powers  of  the  legislature  to  pass  such  laws 
stands  on  very  debateable  ground.  It  is  not  contained  in  the  construc- 
tion. But  in  the  ordinance  giving  us  the  second  grade  of  government, 
there  are  certain  articles  which  are  declared  to  be  a  compact  between 
the  original  states  and  the  people  and  states  in  the  said  territory,  and 
which  are  for  ever  to  remain  unalterable,  unless  by  common  consent. 
The  first  of  those  provides,  that  no  person,  demeaning  himself  in  a 
peaceable  and  orderly  manner(a),  shall  be  molested  on  account  of  his 
mode  of  worship  or  religious  sentiments,  in  the  said  territory. 

By  the  act  authorizing  the  inhabitants  to  form  a  state  government, 
it  is  provided,  among  other  things,  that  the  constitution  to  be  formed 
shall  contain  the  fundamental  principles  of  civil  and  religious  liberty; 
and  the  law  admitting  the  state  into  the  union,  contains  the  proviso, 
that  all  the  conditions  contained  in  the  third  section  of  the  last  recited 
act,  shall  be  considered  as  fundamental  conditions  and  terms,  on  which 
the  state  is  admitted  into  the  union.  Whether  a  law  passed  in  con- 
travention of  the  article  of  the  ordinance  or  of  the  proviso  in  the  two 
laws  regulating  our  admission  into  the  union,  would  on  that  account 
be  declared  void,  when  the  constitution  contains  no  restriction  of  power 
on  this  subject,  is  a  question  requiring  an  argument  that  does  not  come 
within  the  scope,  and  could  not  be  brought  within  the  compass  of  this 
report.  It  is  stated  to  show,  that  even  on  this  vital  subject,  the  laws 
respecting  religion,  there  were  grounds  for  the  doubts  expressed,  as 
one  of  the  motives  for  directing  the  work  which  I  have  now  the  ho- 
nour to  present. 

The  laws  on  this  subject  are  extremely  oppressive  and  highly  penal. 
Heresy,  Judaism  and  blasphemy,  were  their  principal  objects. 

The  religion  of  the  Jews  was  tolerated;  but  an  attempt  to  make 
proselytes,  leaving  their  houses  on  holy  Friday,  buying  a  Christian 
slave,  and  being  guilty  of  the  absurd  charge  of"  crucifying  young  chil- 
dren" at.  their  festivals,  were  punishable  with  death;  as  was  the  con- 
nexion of  a  Jew  with  a  Christian  woman;  for,  says  the  lavvgiver(^),  "if 
Christians  merit  death  who  commit  adultery  with  married  women, 
much  more  do  Jews  deserve  that  punishment  for  connecting  themselves 

(a)  In  bad  times  this  phraseology  might  give  rise  to  oppression  :  "  he  is  not  to  be  molested 
in  his  religion,  if  he  behave  in  an  orderly  manner."    Do  not  his  religious  rights  then  depend 
on  the  order  of  his  behaviour?     What  would  an  inquisitor  or  an  inquisitorial  judge  call 
orderly  1 

(b)  7  Part.  lit.  24, 1.  9.  Recop.  de  Cast.  $  2,  3  and  4. 


70  INTRODUCTORY  REPORT  TO 

with  Christian  women,  who  are  all  spiritually  the  wives  of  our  Lord 
Jesus  Christ,  on  account  of  the  baptism  they  have  received  in  his  name." 
In  one  instance  the  Jews  had  a  protection  allowed  them  which  the 
English  laws  do  not  give:  they  could  not  be  arrested  on  the  day  of 
their  Sabbath. 

Heresy  is  defined  to  be  a  departure  from  the  Catholic  faith  as  es- 
tablished by  the  church  of  Rome,  or  disbelief  in  a  future  state(a).  The 
punishment  is  death  at  the  stake. 

Blasphemy  is  any  thing  that  is  said  or  done  in  contempt  of  God,  the 
Virgin  Mary  or  the  saints.  The  punishment  for  which,  if  by  words, 
is  forfeiture,  according  to  the  rank  of  the  offender  and  the  repetition  of 
the  offence;  if  by  deed,  with  the  loss  of  the  hands. 

Some  of  these  laws  may  have  been  repealed  by  later  Spanish  laws; 
others,  doubtless,  were  added  prior  to  the  time  that  Louisiana  was  ceded, 
which  have  not  been  brought  within  our  reach.  Therefore,  the  enu- 
meration may  not  be  perfectly  correct.  This  will  be  of  less  importance 
if  the  object  of  the  detail  is  kept  in  view.  This  was  to  give  a  general 
view  of  such  penal  laws  only  as  might  not  be  supposed  to  be  repealed 
by  our  constitution  or  laws;  and  it  must  also  be  remembered  that  the 
provisions,  exceptions  and  other  details  contained  in  those  laws,  which 
would  have  been  indispensable  if  they  had  been  quoted  as  rules  of  ac- 
tion, were  not  thought  so  when  their  existence  and  general  operation 
only  was  the  subject  of  inquiry;  yet  I  have  been  guilty  of  no  voluntary 
omission,  and  have  followed  the  text  always  in  preference  to  the  com- 
mentary of  the  law. 

Most  willingly  would  I  here  close  this  catalogue;  but  the  present 
state  of  our  jurisprudence  renders  it  a  duty  with  which  I  reluctantly 
comply,  to  add  to  the  list  a  wordat  which  humanity  shudders,  and  to  ask, 
whether  we  are  as  sure  as  we  ought  to  be  that  torture  forms  no  part  of 
our  criminnl  law?  It  found,  with  all  its  horrors,  a  prominent  place 
among  the  laws  of  Spain;  and  to  determine  in  what  degree  they  are 
modified  or  repealed,  the  hateful  task  must  be  performed  of  adverting 
to  their  provisions. 

This  diabolical  power  was  vasted  in  the  judge,  with  no  other  limita- 
tion as  to  the  degree  in  which  it  was  to  be  inflicted,  than  that  it  should 
not  extend  to  loss  of  life  and  limb.  Within  these  limits  he  was  not 
only  empowered  but  instructed  so  to  direct  the  operation  as  to  create  the 
most  excruciating  physical  and  moral  anguish.  These  monsters  studied 
the  human  frame,  to  discover  in  what  part  it  would  feel  the  acutestpain; 
they  marked  the  working  of  the  mind,  to  know  where  the  deepest 
wounds  of  the  spirit  could  be  inflicted:  and  they  insert  the  result  of., 
their  cold-blooded  calculation  in  their  laws  with  minutiae  that  sickens 
the  heart.  Among  several  delinquents,  the  judge  is  directed  to  select 
for  this  operation  of  cruelty  and  horror,  the  youngest,  the  most  deli- 
cately framed(6),  the  most  tenderly  educated,  and — is  this  an  earthly 
or  a  hellish  code  that  I  am  reviewing? — when  there  is  a  father  and 
a  son,  to  rack  the  limbs  of  the  child  in  the  presence  of  the  parent — "  be- 
cause," says  the  worthy  commentator  on  this  text,  "  a  father(c)  can 
better  bear  his  own  torments  than  those  of  his  child  ;*^  and  in  the  same 

(a)  Part.  tit.  26, 1. 1  and  2.  Rec.  $  3,  1.  (b)  Ib.  tit.  30, 1.  5.    Gom.  Var.  Res.  c.  13. 

(c)  Greg.  Lop.  note  on  1.  5.    7  Part.  tit.  30. 


THE  SYSTEM  OF  PENAL  LAW.  71 

spirit,  women  were  made  the  first  victims,  until  some  of  these  fiends 
discovered  that  they  bore  pain  with  more  fortitude  than  men.  The 
objects  upon  whom  the  application  of  this  engine  for  beating  out  the 
truth,  as  it  is  called  in  their  laws  (escodrinar  la  verdad),  was  authorized, 
were,  first  the  accused  (a),  who  was  vehemently  suspected,  or  against 
whom  there  was  no  certain  proofs,  for  the  purpose  of  forcing  a  con- 
fession; secondly,  a  convict  to  make  .him  discover  his  accomplice; 
thirdly,  a  witness  who  prevaricates.  It  would  not  have  been  necessary 
to  enter  into  the  details  of  these  laws,  if  their  provisions  had  been  known 
or  attended  to  by  those  who  framed  our  constitution.  They  seem  to 
have  entertained  the  common  error  that  torture  was  only  authorized 
in  order  to  force  a  confession  from  the  accused;  and  they,  therefore, 
thought  it  would  be  completely  abrogated  by  the  clause  which  provides, 
"that  the  accused  shall  not  be  obliged  to  give  evidence  against  himself," 
— leaving  its  application  to  force  testimony  against  others  entirely  un- 
affected by  the  provision,  at  least  so  far  as  relates  to  the  offences  not 
enumerated  in  the  act  of  4th  May  1805.  I  would  not  be  understood 
as  expressing  a  belief  that  this  mode  of  obtaining  testimony  will  ever 
be  resorted  to.  It  is  too  repugnant  to  our  feelings — too  inconsistent 
with  our  morals  and  earliest  impressions.  Non  nostri  generis  nee  san- 
guinis  est.  It  is  not  of  our  country,  and  belongs  not  to  our  generation 
or  race.  It  is  of  foreign  growth,  and  cannot  be  engrafted  on  our  juris- 
prudence. Yet  the  word  must  not  stain  its  pages.  It  is  yours  to  purge 
them  of  this  disgrace;  to  take  away  not  only  the  possibility  of  its  being 
inflicted,  but  prevent  its  very  sound  from  offending  the  ears,  or  its  idea  pol- 
luting the  minds  of  freemen :  or,  if  it  must  be  remembered,  let  it  be  only 
as  one  in  the  list  of  evils  from  which  our  connexion  with  a  confederacy 
of  free  states  has  relieved  us.  Yes,  this  task  must  be  performed:  for 
notwithstanding  the  confidence  we  all  feel  that  the  intelligence  and 
humanity  of  our  fellow  citizens  would  reject  these  horrors,  yet  we  must 
not  tempt  folly  or  wickedness  by  placing  such  weapons  within  its  reach. 
All  the  inhuman  and  ill-assorted  and  unknown  laws  must  be  positively, 
unequivocally,  publicly  abrogated.  Reason  requires  it;  prudence  points 
out  the  danger  of  delay;  and  experience  has  added  her  warning  and  con- 
vincing voice  to  teach  us  how  little  reliance  we  can  place  on  our  fancied 
security(6).  For,  in  closing  this  subject,  let  me  answer  those  who 

(a)  7  Pait.  tit.  30, 1.  8.     Ant.  Com.  ubi  supra. 

(I)  I  should  have  thought  the  danger  almost  imaginary  on  this  point,  if  I  had  not  found 
the  philosopher  Voltaire,  his  disciple  Diderot  and  M.  Hautefort,  all  three  commentators  on 
Bcccaria,  enthusiastic  admirers  of  his  humane  doctrines,  and  particularly  of  his  arguments  for 
the  abolition  of  torture  against  the  accused — if  1  had  not  found  them  more  or  less  expressly 
agreeing,  that  it  ought  to  be  retained  as  the  means  of  procuring  from  a  convict  the  disclo- 
sure of  his  accomplices. 

"  Reserve  (says  Voltaire)  at  least  this  cruelty  for  acknowledged  villains,  who  have  assas- 
sinated the  head  of  a  family,  or  the  father  of  his  country,  to  find  out  their  accomplices,"  &c. 
—  Comm.  Becearia,  c.  13. 

Hautefort  says,  "  It  (the  torture)  can  only  be  employed  against  a  criminal  convicted  in 
the  most  legal  manner,  in  order  to  discover  his  accomplices."  But  he  adds, "  would  it  not 
be  essential  to  examine  whether  the  search  after  accomplices  is  not  too  rigorous." — Obser- 
vations sur  le  Livre  des  Delites  et  des  Peines. 

Diderot  is  explicit.    He  says,  "  this  additional  torment  is  necessary  to  draw  from  him 


72  INTRODUCTORY  REPORT  TO 

still  tell  you  there  is  no  danger;  who  can  see  no  mischief  until  it  is  felt; 
who  deride  as  visionaries  and  false  prophets  of  evil,  all  those  who  by  a 
prudent  foresight  strive  to  avert  them.  Let  me  tell  those  incredulous 
apostles,  who  will  not  believe  that  a  stroke  has  been  inflicted  until  they 
can  lay  a  finger  on  the  wound,  or  that  what  has  been  dead  may  be  re- 
vived, until  with  their  eyes  they  behold  the  resurrection — let  me  tell 
them,  that  such  revival  of  dead  and  obsolete  laws  requires  no  miraculous 
power  to  effect;  that  a  weak,  an  ignorant  or  a  conceited  magistrate  is 
sufficient  for  the  operation;  that  it  has  actually  happened,  and  that  by 
such  agency  one  of  the  worst,  the  most  inhuman  and  arbitrary  of  all 
those  ancient  laws  has  been  executed  under  our  free  and  enlightened 
government.  In  a  remote  parish  of  the  then  territory,  a  human  being 
was,  for  I  know  not  what  crime,  by  the  sentence  of  a  magistrate  con- 
demned to  be  burned  alive;  that  the  sentence  was  executed  in  his  pre- 
sence, and  that  there  was  no  law  passed  by  the  government  of  the 
territory  authorizing  such  punishment.  It  is  true,  the  victim  was  a 
slave.  It  is  true,  that  a  law  of  Spain  directs  that  the  slave  shall  be 
punished  with  more  cruelty(a)  than  the  freeman,  and  the  commoner 
than  the  nobleman.  But  the  only  law(Z>)  I  have  been  able  to  discover 
for  using  this  inhuman  punishment  makes  no  distinction.  It  permits  the 
judge  in  every  capital  case  to  designate  the  punishment.  It  may  at 
his  discretion,  be  either  "decapitation  with  the  sword  (for  the  statute 
with  great  humanity  forbids  the  saw  or  the  reaping  hook),  or  it  may  be 
by  burning,  or  hanging,  or  casting  to  be  devoured  by  wild  beasts." 
Our  judge,  in  the  exercise  of  the  discretion  thus  humanely  given  to  him, 
chose  the  fire  and  the  faggot,  and  afterwards  showed  where  the  writhings 
of  agony  had  forced  the  chain  of  his  victim  into  the  bark  of  the  tree  that 
served  for  a  stake.  No  name  is  mentioned,  for  death  has  removed  the 
magistrate  from  the  reach  of  justification  or  censure;  but  having  strong 
evidence  of  the  fact,  and  its  bearing  being  so  immediate  on  the  subject 
of  the  report,  I  should  have  been  culpable  in  suppressing,  however  re- 
luctant I  might  be  to  mention  it. 

Let  me  now  ask  those  who  have  followed  me  through  this  rapid  de- 
tail, whether  wisdom,  prudence  and  even  necessity  did  not  dictate  to 
the  legislature  the  duty  of  "  removing  doubts  relative  to  the  authority 
of  any  parts  of  the  penal  law  of  the  different  nations  by  which  this  state, 
before  its  independence,  was  governed  ;"  and  of  selecting  out  of  them 
"  such  statutes  as  were  proper  to  be  retained  in  the  penal  code  ?"  In 
the  mass  to  which  I  have  referred,  there  are  some  provisions  that 
we  should  find  an  advantage  in  retaining  ;  but  much  so  inconsistent 

(the  convict)  not  only  tlie  discovery  of  his  accomplices  and  the  means  of  arresting  them,  but 
an  indication  of  the  proofs  necessary  for  their  conviction." — JVbtes  on  Beccaria,  c  12. 

When  the  apostles  of  reform  and  preachers  of  humanity  use  such  language  as  this  in  fa- 
vour of  the  application  of  the  torture  in  one  of  the  cases  in  which,  if  my  argument  be  correct, 
it  still  may  be  considered  as  part  of  our  law,  is  it  a  very  absurd  fear  which  urges  its  positive 
abolition  ? 

(a)  7  Part.  tit.  31, 1.  8.    "  Ca  mas  crumente  deven  escarmentar  al  siervo  que  al  libre  y 
al  ome  vil  que  al  fidalgo." 

(b)  1  Part.  tit.  31, 1.  6.     I  must  in  candour  state  that  I  am  ignorant  under  pretext  of  what 
particular  law  this  execution  took  place  ;  but  as  the  one  I  have  cited  does  authorize  it,  and 
there  was  no  territorial  statute  that  could  justify  it,  I  thought  it  fairer  to  suppose  that  he 
acted  with  than  without  authority. 


THE  SYSTEM  OF  PENAL  LAW.  73 

with  our  ideas  of  justice,  so  well  calculated  to  become  the  instruments 
of  oppression,  that  all  doubts  of  their  existence  as  a  part  of  our  law, 
ought  to  be  put  aside.  Where  there  is  doubt,  there  is  danger  ;  and  my 
object  in  urging  that  none  of  the  received  rules  of  repeal  apply  to  those 
laws,  has  been  only  to  show  that  doubts  may  be  raised,  that  in  the 
hands  of  a  more  able  arguer  those  doubts  may  be  converted  into  con- 
viction of  their  existence,  and  to  the  enforcement  of  such  as  might  suit 
the  party-feeling  or  other  bad  passions  of  the  moment.  Can  the  confu- 
sion of  such  a  decision  be  well  imagined  ?  We  are  now  blessed  with 
peace,  with  exemption  from  any  other  party  feeling  than  those  neces- 
sary for  a  due  vigilance  over  our  servants.  We  have  magistrates  in- 
capable of  wresting  the  law  to  the  purposes  of  interest,  ambition  or 
vengeance.  Now  is  the  time  to  act.  If  those  laws  are  in  force,  let 
them  be  repealed  ;  if  they  are  not,  dissipate  all  doubts.  Do  not  suffer 
them,  in  either  case,  to  remain  a  snare  to  the  unwary,  and  instruments 
in  the  hands  of  a  corrupt  or  ignorant  judge  ;  for  no  oppression  is  so 
detestable  as  that  which  is  exercised  under  the  guise  of  justice;  it  is  the 
only  tyranny  which  can  be  feared  under  our  government.  The  spirit 
of  the  people  would  soon  rise  against  any  open  breach  of  their  rights. 
But  their  respect  for  the  laws,  their  reverence  for  those  who  administer 
them,  make  them  slow  to  perceive  the  oppression  that  is  clothed  in  the 
forms  of  law;  and  when  it  is  discovered,  it  must  remain  unpunished ;  for 
the  excuse  of  error  in  opinion  is  always  ready  to  cover  every  fault  in 
this  branch  of  our  government.  Place  beyond  its  reach,  therefore,  all 
those  instruments  which  would  be  equally  injurious,  whether  brand- 
ished by  folly,  or  directed  by  malignant  design  ;  leave  no  doubt  as  to 
the  existence  of  those  laws  which  you  desire  to  have  enforced  ;  repeal 
all  those  which  it  is  inexpedient,  unjust,  or  impossible  to  execute.  Be 
assured,  legislators,  of  this  truth,  that  there  can  be  no  law  of  which  the 
existence  is  a  matter  of  indifference.  It  must  remain  in  your  code  for 
good  or  for  evil  :  for  good,  if  it  be  a  wise  law  and  carried  into  effect ; 
for  evil,  whether  it  be  good  or  bad,  if  it  remain  unexecuted.  In  the 
one  case  the  people  are  taught  the  dangerous  lesson  that  the  best  pre- 
cepts may  be  disregarded  with  impunity  ;  in  the  other  they  are  sub- 
jected, when  the  danger  is  least  apprehended,  to  the  unjust  operation 
of  a  forgotten  law. 

Indeed,  there  is  scarcely  a  greater  reproach  to  the  jurisprudence  of 
a  nation  than  the  existence  of  obsolete  laws(a)  ;  that  is  to  say,  laws 
that  are  none — laws  that  are  no  rule  to  guide  our  actions,  because  they 
are  unknown  to,  or  forgotten  by  those  upon  whom  they  are  to  ope- 
rate ;  but  which  yet  may  be  used  to  punish  them  for  their  contraven- 
tion, because  they  are  known  and  remembered  by  those  who  are  em- 
powered to  enforce  them,  whenever  the  malice  of  a  prosecutor,  or  the 
ignorance,  corruption,  or  party-feeling  of  a  judge  may  induce  him  to 

(a)  Hear  what  the  wise  Bacon  says  on  this  subject:  "  Dicit  propheta  pluet  super  eos  laqueos; 
oonsuntautem  pejores  laquei  quamlaquei  leguin,  praesertim  paenalium;  si  numero  immensae  et 
temporis  decursu  inutiles  non  lucernam  pedibus  prsebeant,  sed  retiapotius  objieiant."  Jlpho- 
rismus  53. — The  prophet'saith,  it  shall  rain  snares  upon  them  ;  but  of  all  snares,  the  snares 
of  the  law  are  the  worst,  especially  of  the  peual  law  ;  when  they  have  become  useless,  ei- 
ther by  the  accumulation  of  their  number  or  by  the  lapse  of  time,  they  ate  not  a  light  to 
guide  our  steps,  but  a  net  to  entangle  them. 
K 


74  INTRODUCTORY  REPORT  TO 

draw  the  rusty  sword  from  its  scabbard.  To  apply  this  to  our  case,  as 
has  been  seen, 

"  We  have  strict  statutes  and  most  biting  laws, 
Which(a)  for  these  nineteen  years  we  have  let  sleep;" 

statutes  of  such  number  and  variety,  that  there  is  not  a  state  or  condi- 
tion in  life  that  cannot  be  affected  by  them  ;  not  a  man  in  the  commu- 
nity that  lias  not  made  himself  obnoxious  to  the  penalties  of  some  of 
them.  Let  the  long  but  imperfect  list  I  have  given  be  perused,  and 
where  is  he  who  can  say  that  some  of  his  actions  may  not  be  brought 
within  the  purview  of  one  or  more  of  the  loose  and  entangling  defini- 
tions contained  in  those  laws.  But  even  if  they  should  never  be  made 
the  instruments  of  oppression,  if  they  should  remain  wholly  unexe- 
cuted, the  effect  is  scarcely  less  to  be  deprecated,  and  is  thus  well  ex- 
pressed by  the  high  authority  whose  aphorism  I  have  just  referred  to 
in  a  note  :  "  Here  is  a  further  inconvenience  of  obsolete  penal  laws  ; 
for  this  brings  on  a  gangrene,  neglect  and  habit  of  disobedience  upon 
other  wholesome  laws,  that  are  fit  to  be  continued  in  practice  and  exe- 
cution, so  that  our  laws  endure  the  torment  of  Mezentius,  the  living 
die  in  the  arms  of  the  dead  !" 

It  is  your  province,  by  correcting  the  evil,  to  complete  what  your 
predecessors  began.  This  might  be  effected  by  a  general  repeal ;  but 
that  would  be  a  small  part  of  the  duty  which  your  constituents — which 
the  world  requires  at  your  hands.  Graviora  manent. 

The  list  of  defects  in  our  present  system  is  but  begun.  They  must 
be  faithfully  exhibited  to  your  view.  The  allegation  so  frequently 
repeated,  that  we  want  no  reform,  has,  it  cannot  be  concealed,  had  its 
effect  on  the  community,  on  its  representatives.  It  shall  be  completely 
refuted.  I  speak  with  confidence  because  I  know  my  ground.  The 
task  is  not  a  pleasant  one,  but  it  must  be  performed.  Let  us  proceed 
with  the  detail. 

The  common  law,  to  which  we  are  referred  for  definition,  procedure, 
and  evidence,  has,  I  may  believe,  been  demonstrated  to  be  rather,  to 
say  the  least  of  it,  an  uncertain  guide.  But  what  shall  be  said  of  the 
legislation  that  in  many  cases  gives  us  none(6)  ?  Yet  such  is  ours. 
This  point  deserves  to  be  the  more  seriously  considered,  because  1  be- 
lieve it  has  not  hitherto  attracted  attention. 

(a)  The  slumber  in  which  our  Spanish  statutes  has  been  plunged,  is  somewhat  longer  than 
Shakspeare  has  feigned  those  of  Vienna  to  have  been,  yet  it  may  happen,  that  some  "  pre- 
cise lord  Angelo"  may  be  found, 

"  To  awaken  all  the  enrolled  penalties 
Which  have  like  unsecured  armour  hung  to  the  wall, 
And  none  of  them  been  worn  ;  and  for  a  name 
,    May  put  the  drowsy  and  neglected  act 

Freshly  in  execution." 

Let  our  modern  Claudios  beware,  for  among  the  rusty  Spanish  statutes  is  one  imposing  the 
penalty  of  death  for  the  very  offence  which  put  the  gay  deceiverof  the  play  in  peril  of  his  head. 

(b)  Bacon,  a  name  which  I  love  to  quote,  in  inquiring  into  the  causes  of  the  law's  uncer- 
tainty, places  this  first  on  the  list — "  duplex  legum  incertitude  ;  altera  ubi  lex  nulla  pr«e- 
scribilur,  allera  ubi  ambigua  et  obscura."    Unfortunately  we  have  both. 


THE  SYSTEM  OF  PENAL  LAW.  75 

By  the  33d  section  of  the  act  so  frequently  referred  to  (4th  May  (a) 
1805)  it  is  enacted,  "  that  all  the  crimes,  offences  and  misdemeanors 
herein  before  named,  shall  be  taken,  intended  and  construed  according 
to,  and  in  conformity  with,  the  common  law  of  England  ;  and  that  the 
forms  of  indictment  (divested,  however,  of  unnecessary  prolixity),  the 
method  of  trial,  the  rules  of  evidence,  and  all  other  proceedings  what- 
ever in  the  prosecution  of  the  said  crimes,  offences  and  misdemeanors, 
changing  what  ought  to  be  changed,  shall  be  (except  as  by  this  act  is 
otherwise  provided  for)  according  to  the  said  common  law." 

Now  although  it  seems  sufficiently  plain  that  the  common  law  is  re- 
ferred to  only  as  relates  to  the  crimes  and  offences  enumerated  in  that 
act,  the  argument  is  made  stronger  by  the  third  section  of  the  act  of  3d 
July  1805,  being  the  second  law  on  the  subject  of  offences  that  was 
passed  by  the  territorial  legislature.  It  declares,  "  that  all  other 
crimes,  offences  and  misdemeanors  not  provided  for  by  that  or  the 
former  act,  should  be  punished,  prosecuted  and  tried  according  to  the 
common  law  of  England."  This  guarded  against  the  evil  ;  but  the 
very  next  year  the  legislature  repealed  it,  thereby  adding  an  express 
to  the  former  implied  declaration  of  their  will,  that  the  common  law  of 
England  should  be  applied  to  those  offences  only  that  were  enumerated 
in  the  act  of  1805.  Yet  that  act  enumerates  only  certain  offences,  and 
very  many  more  have  been  created  by  subsequent  statutes,  as  may  be 
seen  by  a  reference  to  the  schedule  annexed  to  this  report.  But  in  no 
one  of  these  last  is  there  any  reference  to  the  common  or  any  other 
law,  for  the  definition  of  the  crime,  the  mode  of  procedure,  or  the  rules 
of  evidence  !  What  then  did  the  legislature  intend  should  be  the  rule 
to  govern  the  courts  ?  Did  they  intend  the  common  law  ?  Certainly, 
as  it  is  a  foreign  code,  they  shall  not  be  presumed  to  have  introduced 
it  without  some  indication  of  that  intent.  The  legal  conclusion  is,  that 
the  existing  laws  were  intended  to  govern  in  all  cases  where  they  are 
not  abrogated  or  altered.  In  that  case  we  should  have  to  consult  Span- 
ish authorities  for  the  definition  of  offences  and  the  rules  of  evidence, 
and  for  the  mode  of  proceeding,  so  far  as  was  compatible  with  the  other 
provisions  of  the  constitution  and  statutes  of  the  state.  Yet  this  has 
great,  perhaps  insurmountable  difficulties.  To  avoid  these  difficulties 
recourse  has  been  had,  under  the  plea  of  necessity,  to  the  assumption 
of  legislative  power  by  the  courts.  They  have,  without  scruple  and 
without  being  questioned,  applied  the  33d  section  of  the  act  of  1805  to 
all  the  subsequent  penal  laws;  they  have  restored  the  third  section  of  this 
second  act  which  the  legislature  repealed,  and  have  defined  and  tried 
all  offences  indiscriminately  according  to  the  common  law.  It  will  not, 
it  is  presumed,  be  denied,  that  the  introduction  of  this  section  into  the 
act  was  the  exercise  of  a  legislative  power,  necessary  in  order  to  the 
application  of  the  common  law  to  the  offences  enumerated  in  that  sta- 
tute. If  so,  it  follows  that  nothing  but  the  exercise  of  a  similar  power 
could  legally  apply  it  to  offences  not  enumerated  in  that  act.  But  it  has 
been  so  applied  to  the  other  offences  by  the  judiciary  ;  therefore,  the 
judiciary  have  exercised  a  legislative  power.  But  the  constitution  has 
expressly  forbidden,  both  by  affirmative  precept  and  positive  prohibi- 

(o)  This  act  ia  quoted  in  Martin's  Digest,  sometimes  under  the  date  of  24th  January  1805, 
sometimes  the  4th  May  1805.  I  believe  the  latter  is  the  true  date,  but  have  no  means 
here  of  ascertaining  it  correctly. 


76  INTRODUCTORY  REPORT  TO 

tion,  in  the  most  precise  terms  that  the  language  could  afford,   any 
such  exercise  of  power. 

"The  powers  of  the  government  of  the  state  of  Lousiana  shall  be 
divided  into  three  distinct  departments,  and  each  of  them  shall  be  con- 
fided to  a  separate  body  of  magistracy,  viz.,  those  which  are  legisla- 
tive to  one,  those  which  are  executive  to  another,  and  those  which  are 
judiciary  to  another.  No  person  being  one  of  these  departments  shall 
exercise  any  power  properly  belonging  to  either  of  the  others,  except 
in  the  instances  hereinafter  expressly  directed  or  permitted." 

I  do  not  ascribe  this  exercise  of  powers  to  any  improper  motive.  It 
may,  without  any  such  imputation,  be  accounted  for  by  the  confused 
state  of  our  criminal  laws,  which  forced  the  courts  either  to  suffer 
crimes  to  go  unpunished,  or  to  assume  powers  not  properly  belonging 
to  them,  but  which  the  proper  department  would  not  exercise  itself, 
and  took  no  pains  to  prevent  the  exercise  by  another. 

It  is  thus  that  the  assumption  of  unconstitutional  powers  is  first  exer- 
cised, then  excused,  and  in  the  end  insisted  on  as  a  right  ;  and  it  is 
as  essential  to  good  government  that  each  department  should  exercise- 
its  proper  functions  as  that  it  should  avoid  assuming  those  of  another; 
for  power  is  too  precious  to  be  lost.  Whatever  is  abandoned  by  one 
is  eagerly  seized  by  the  other  ;  and  careless  legislation  will  inevitably 
produce  executive  and  judicial  encroachment. 

In  the  case  under  discussion  there  is  less  cause  to  inculpate  the 
courts  of  law,  because  the  question  has  not,  it  is  believed,  been  hitherto 
raised  for  decision  ;  but  whenever  it  shall  be,  its  importance  will  be 
discovered,  and  the  inevitable  result  be  either  a  solemn  decision, 
which  cannot  be  supposed,  that  courts  have  legislative  powers,  or  a 
confession  of  that  which  we  are  now  endeavouring  to  establish,  that  a 
written  code  is  necessary  for  the  execution  of  the  penal  law.  To  prove 
this,  let  us  suppose  that  on  the  trial  of  a  capital  offence  created  by  an 
act  passed  since  the  year  1805,  a  witness  should  be  offered  who  is  com- 
petent according  to  the  common  law  of  England,  but  inadmissible  under 
the  laws  which  I  have  rapidly  reviewed,  either  as  a  usurer,  a  comedian, 
a  person  of  illegitimate  birth,  or  as  enemy  of  the  accused(a),  or  a 
priest(A),  a  minor(c)  under  sixteen  years  of  age,  a  relation  in  the 
ascending(rf)  or  descending  line,  or  a  collateral  within  the  fourth  degree, 
or  for  any  of  the  numerous  other  exceptions  that  exclude  witnesses  ac- 
cording to  the  Spanish  law  ;  by  what  process  of  reasoning  will  any 
court  come  to  the  conclusion  that  they  have  the  right  to  adopt  the  com- 
mon law  as  their  guide  in  this  question  ?  What  species  of  testimony 
is  to  be  admitted  ?  What  makes  a  competent  witness  ?  are  questions 
which  the  laws  of  the  country  must  decide  by  general  rules.  Whether 
any  particular  testimony  offered,  any  individual  witness  produced, 
comes  within  these  rules,  are  questions  for  the  judge  to  decide. 

On  the  change  of  government  there  were  laws  which  governed  the 
admission  of  witnesses.  The  new  government  changed  these  laws,  as 
related  to  certain  enumerated  crimes.  It  was  silent  as  to  the  others. 
What  was  the  consequence  as  to  those  others  ?  Either,  as  I  believe, 
that  the  old  law  remained  in  force  ;  or,  if  that  should  not  be  the  case, 
that  they  remained  without  any  law  to  govern  them.  But  in  either 

(ft)  Ant.  Com.  Var.  Res.  3d  vol.  c.  12,  No.  15.  (6)  Ib.  No.  20. 

(c)Ib.  No.  14.  (d)Ib.No.  16. 


THE  SYSTEM  OF  PENAL  LAW.  77 

case  the  common  law  of  England  would  not  be  applied  to  them  with- 
out a  legislative  act.  The  selection  of  that  law  for  the  offences  enumer- 
ated in  the  act  of  1805  was  a  legislative  act.  The  application  of  it  to 
others  must  be  one  of  the  same  character  ;  for,  as  we  have  seen,  it  is 
strictly,  emphatically  confined  by  that  law  to  the  offences  therein  enu- 
merated, and  for  subsequent  offences  the  judiciary  have  the  same  right 
to  select  the  laws  of  Hindostan  as  they  have  to  adopt  those  of  England. 
But  if  they  have  not  this  right,  if  they  cannot  exercise  it,  is  there  a 
doubt  that  the  legislature  ought  and  must  do  it,  because  there  is  either 
no  rule,  or  the  one  that  exists  under  the  laws  of  Spain  is  so  monstrous, 
so  perfectly  inapplicable  to  our  situation  that  it  equally  calls  for  reno- 
vation ?  But  what  remedy  can  the  legislature  apply  ?  Is  it  by  the 
summary  process  adopted  in  1S05  of  selecting  a  foreign  code  ?  During 
the  territorial  government  this  could  have  been  done  ;  but  now  the 
only  remedy  is  a  code  that  shall  define  the  crime,  direct  the  procedure 
and  give  the  rules  of  evidence.  Attention  is  particularly  necessary  to 
this  argument,  because,  unless  the  reporter  errs,  it  is  conclusive  as  to 
the  necessity  of  the  work  in  question. 

The  framers  of  our  constitution  had  been  witnesses  to,  and  had  par- 
ticipated in  the  anxiety  and  dismay  that  pervaded  the  whole  commu- 
nity when  an  attempt  was  made,  in  the  earliest  stage  of  our  political 
connexion  with  the  United  States,  to  take  advantage  of  an  ambiguous 
expression  in  the  ordinance  given  for  bur  government,  in  order  to  in- 
troduce a  new  system  of  jurisprudence(a),  totally  unknown  to,  and  the 
knowledge  of  which  was  unattainable  by  the  people  of  the  territory. 
They  dreaded  the  common  law  of  England.  They  feared  another  at- 
tempt to  introduce  it.  Their  escape  was  too  recent  not  to  make  them 
apprehend  that  in  future  times  the  struggle  might  be  renewed.  They 
wisely  thought  that  to  be  free,  a  people  must  know  the  laws  by 
which  they  were  governed.  They  were  aware  of  the  difficulty,  nay,  the 
utter  impossibility  of  this  knowledge  being  acquired  when  the  law  was 
unwritten,  or  if  written,  dispersed  through  hundreds  of  volumes  in  a 
language  unknown  to  three-fourths  of  their  constituents.  They  saw  the 
danger  of  permitting  a  particular  class  of  men  to  become  the  sole  de- 
positaries of  this  knowledge  and  the  sole  interpreters  of  the  laws  ;  and 
they  did  every  thing  that  prudent  foresight  could  do  to  prevent  these 
evils,  by  inserting  in  the  constitution  the  following  clause  :  "  The 
existing  laws  in  this  territory,  when  this  constitution  goes  into  ef- 
fect, shall  continue  to  be  in  force  until  altered  or  abolished  by  the 
legislature  ;  provided,  however,  that  the  legislature  shall  never  adopt 
any  system  or  code  of  laws  by  a  general  reference  to  the  said  system  or 
code,  but  in  all  cases  shall  specify  the  several  provisions  of  the  laws 
it  may  enact." 

By  this  important  amendment,  for  which  the  gentleman  who  intro- 
duced it  deserves  the  thanks  of  his  country(6),  and  by  the  section  which 
follows  it  requiring  the  judges  in  definitive  sentences  to  refer  to  the  par- 

(a)  To  have  had  a  share  in  averting  this  danger  gives  the  reporter  a  satisfaction  that  can 
be  equalled  only  by  his  being  instrumental  in  the  establishment  of  a  system  that  may  pro- 
mote the  honour  and  happiness  of  the  state  that  has  honoured  him  with  the  preparatory  duty 
he  is  now  performing. 

(/<)  Mr  Bernard  Marigny  is  the  member  of  the  convention  to  whom  the  state  is  indebted 
for  this  essential  service. 


78  INTRODUCTORY  REPORT  TO 

ticular  law  by  which  they  were  governed,  an  effectual  bar  was  placed 
to  the  legislative  introduction  of  unwritten  law  ;  and  no  act  can  now 
constitutionally  be  passed,  extending  the  33d  section  of  the  act  of  1805, 
which  introduces  the  common  law  to  any  offences  created  by  law  since 
that  period.  If  they  wish  to  provide  rules  on  the  subjects  embraced 
by  that  section  they  must  enact  them  specifically,  that  is  to  say,  call  it 
by  what  name  it  may  be  convenient  to  use,  they  must,  in  effect,  have 
a  code  or  a  law  defining  crimes,  a  code  of  procedure  and  a  code  of  evi- 
dence. This  wise  provision,  while  it  prevented  a  repetition  of  the 
careless  legislation  which  introduced  the  common  law  of  England 
without  considering  or  even  knowing  its  provisions,  did  not  prevent 
the  adoption  of  all  those  parts  of  it  which  have  justly  commanded  the 
admiration  of  the  world  ;  but  it  imposed  the  necessity  of  distinguishing, 
of  selecting,  of  knowing  them  and  of  reducing  them  to  writing  ;  so  that 
the  people  might  not  only  be  governed  by  them,  but  might  understand 
and  approve  them. 

The  position,  then,  with  which  I  set  out  on  this  head  is  fully  esta- 
blished: that  there  is  no  alternative  but  this — the  legislature  must  make 
a  code,  or  they  must  suffer  the  courts  to  legislate  on  subjects  of  the  most 
importance  to  life,  reputation,  personal  liberty  and  civil  and  political 
rights.  It  will  be  no  escape  from  this  dilemma  to  say  that  the  legis- 
lature, having  defined  an  offence  and  having  designated  the  punishment, 
an  implied  power  is  given  to  the  court  to  do  all  else  that  is  necessary. 
There  are  three  answers  to  this  argument,  all  of  them  conclusive. 
First,  the  establishment  of  rules  of  evidence  is  a  legislative  act;  it 
cannot,  therefore,  be  expressly  transferred,  much  less  can  it  be  by  im- 
plication. Secondly,  if  a  legislative  power  could  be  transferred,  this 
power  could  not,  because  the  power  of  the  general  assembly  itself  is 
restricted  in  this  particular  by  the  clause  I  have  just  quoted.  Thirdly, 
if  this  power  could  be  transferable  from  the  general  assembly,  they 
could  not  vest  it  in  the  judiciary,  nor  could  this  latter  department  exe- 
cute it,  by  reason  of  the  express  inhibition  to  which  I  have  referred. 

As  little  will  it  avail  to  say  that  this  is  not  the  adoption  of  a  code  or 
system  of  laws  which  was  forbidden  by  the  constitution,  but  only  the 
adaptation  of  a  part  of  such  system  to  a  particular  part  of  our  law.  The 
evil  intended  to  be  guarded  against  was  that  of  the  introduction  of  laws 
by  a  general  reference,  without  seeing  and  considering  their  particular 
import;  and  most  especially  (I  appeal  to  all  the  members  of  that  con- 
vention) against  the  introduction  of  the  common  law  of  England,  or 
unwritten  law.  But  of  what  avail  would  this  provision  have  been, 
if,  by  a  general  reference  to  its  particular  parts  the  whole  might  have 
been  introduced  ?  The  argument  then  would  be  this: — it  is  true  we 
cannot  introduce  the  common  law  by  a  general  reference  to  the  whole; 
but  by  taking  its  parts  separately  we  may  effect  the  same  thing,  and  by 
the  same  forbidden  means  of  a  general  reference  to  each  of  them.  Thus, 
without  repeating  or  indeed  knowing  its  details,  we  will  by  one  act 
say,  the  common  law  rules  of  evidence  shall  be  introduced;  by  another, 
we  will  adopt  its  laws  of  descents;  by  a  third,  its  whole  criminal  law; 
and  so  of  the  rest. 

Leaving  the  consideration  of  these  general  defects  in  our  criminal 
law,  we  must  examine  its  particular  provisions;  and  here,  too,  we  shall 
find  so  many  omissions  to  supply,  so  many  faults  to  correct,  as  must 
show  the  necessity  of  a  thorough  reform  if  we  wish  to  attain  a  system 


THE    SYSTEM  OF  PENAL  LAW.  79 

that  will  do  us  honour,  or  if  we  aspire  only  to  the  humbler  merit  of 
avoiding  the  grossest  faults  in  legislation.  A  very  brief  recurrence  to 
our  statute-book  will  show  that  there  is  abundant  reason  to  justify  the 
declaration  of  your  predecessors,  that  our  present  system  "  is  defective 
in  many  or  all  of  the  points  that  are  of  primary  importance  in  every 
well  regulated  state."  To  begin  with  one  that  must  strike  the  most 
superficial  observer.  What  else  could  be  said  of  the  system  which 
provides  no  means  for  inflicting  the  only  punishments  its  laws  denounce 
against  the  most  numerous  and  most  injurious  classes  of  crimes  ?  Four- 
fifths  of  the  offences  enumerated  in  the  statutes  are  punishable  by  im- 
prisonment at  hard  labour;  yet,  for  more  than  twenty  years  no  means 
have  been  provided  for  employing  those  who  may  commit  such  offences. 
Two  evils  result  from  this  neglect.  The  judges  are  forced  to  pro- 
nounce a  sentence  which  they  know  cannot  be  carried  into  effect;  and 
the  offender  suffers  a  punishment  not  denounced  by  law  against  his 
offence;  not  to  speak  of  another  consequence,  which  will  be  enlarged 
upon  in  the  introductory  report  to  the  Code  of  Prison  Discipline,  the 
incalculable  evil  of  indiscriminate  confinement  in  idleness. 

What  shall  we  say  of  this  system  ?  Shall  we  say  that  it  is  so  perfect 
as  to  need  no  amendment — that  he  was  rash  and  presumptuous  who 
thought  he  could  propose  a  better — that  the  legislature  which  authorized 
the  experiment  formed  vain  theories  ?  Or,  shall  we  deny  to  the  in- 
congruous mass  of  written  and  unwritten  law  the  very  name  of  a  sys- 
tem; and  say,  that  the  humblest  abilities  might,  without  vanity,  aspire 
to  propose  something  that  would  replace  it  to  advantage;  and  that  the 
attempt  to  amend  it  did  honour  to  your  predecessors  ?  These  conclu- 
sions will  appear  the  more  irresistible  the  further  we  advance  in  the 
examination  of  our  statute  law. 

From  the  year  1805  to  1819  we  have  fourteen  statutes,  providing 
for  the  punishment  of  more  than  seventy  different  acts,  or  for  the  same 
act  under  different  modifications  of  circumstance  and  intent;  without 
including  the  prohibitions  of  the  same  act  in  relation  to  several  objects 
specified  in  the  statute — as  for  example,  the  different  instruments,  the 
falsely  making  of  which  is  declared  forgery;  besides  pecuniary  and 
other  forfeitures  for  infractions  of  particular  regulations  interspersed  in 
many  other  statutes.  This  period  comprises  only  fourteen  years.  Yet 
the  want  of  some  fixed  principles  of  legislation,  the  utter  disregard  of 
system  and  method,  and  an  astonishing  inattention  to  preceding  enact- 
ments, as  well  as  to  a  due  proportion  of  punishments  to  crimes,  have 
led  us  in  that  short  space  of  time  into  incongruities,  the  development 
of  which  must  excite  the  wonder  of  those  who  have  believed  the  re- 
peated assertions  so  confidently  made,  that  our  penal  laws  want  no 
amendment. 

When  the  provisions  of  the  projected  codes  are  compared  with  the 
existing  laws,  their  discrepancies  will  be  more  particularly  pointed  out. 
Here  it  will  be  sufficient,  generally,  to  refer  to  a  few  instances  of  this 
species  of  legislation. 

When  we  consider  the  different  circumstances  attached  to  the  com- 
mission of  homicide,  which  may  characterize  it  as  an  innocent  or  even 
a  meritorious  act,  when  done  in  defence  of  ourselves  or  in  the  service 
of  our  country;  as  excusable  when  the  effect  of  accident;  slightly  pun- 
ishable when  produced  by  passion  arising  from  adequate  cause;  or 
meriting  the  highest  penalty  when  coming  under  the  denomination  of 


80  INTRODUCTORY  REPORT  TO 

murder:  we  must  see  the  necessity  of  designating  with  the  greatest  pre 
cision  the  different  circumstances  and  intentions  which  give  to  the  same 
act  the  character  of  a  virtue,  an  excusable  fault,  a  slight  offence,  or  a 
crime  of  the  blackest  dye;  which  entitle  the  accused  to  reward  and  es- 
teem, to  pity  and  forgiveness,  or  consign  him  to  death.  Surely,  if  there 
is  any  subject  on  which  the  law  ought  to  speak  in  language  intelligible 
to  the  meanest  capacity,  in  which  it  ought  to  be  accessible  to  all,  in 
which  there  should  be  no  doubtful  phrase,  no  contradictory  enactments, 
it  is  this.  Let  us  see  how  far  our  boasted  legislation  complies  with 
these  requisites. 

The  first  act  (4th  May  1805)  declares,  that  if  any  person  shall  com- 
mit the  crime  of  wilful  murder  he  shall  suffer  death;  and  that  if  he 
commit  manslaughter,  he  shall  be  fined,  and  may  be  imprisoned  at 
hard  labour  or  otherwise.  The  fine  may  be  one  cent  or  five  hundred 
dollars,  and  the  imprisonment  one  hour  or  twelve  years.  Here  are 
only  two  kinds  of  homicide  provided  for;  and,  if  it  be  true  that  the 
Spanish  laws  cease  to  operate,  this  law  informs  the  citizens  that  every 
other  killing  may  be  perpetrated  without  inclining  any  penalty.  It  is 
highly  important  then  to  know  what  these  terms  mean.  At  the  time 
this  law  passed,  four-fifths  of  the  population  could  understand  no  En- 
glish; and  a  very  few  only  of  the  other  fifth  could  explain  the  meaning 
of  the  technical  terms  murder  and  manslaughter.  The  only  guide, 
therefore,  for  a  large  majority  of  the  people  would  be  the  French  ver- 
sion of  the  law.  There  they  find  that  the  one  is  "  homicide  premed- 
itee,"  and  the  other  "homicide  non  premeditie,"  according  to  which 
the  justifiable  homicide  of  a  public  enemy  would  be  punished  with 
death,  and  the  accidental  shooting  of  a  friend  might  incur  imprisonment 
at  hard  labour  for  twelve  years.  Reason  would  revolt  at  this;  and  it 
Avould  be  scarcely  a  sufficient  answer  for  the  legislator  who  might  have 
been  reproached  with  this  slovenly  manner  of  performing  his  duty  to 
say,  "read  on;  the  33d  section  of  the  statute  takes  away  all  cause  of 
complaint.  You  are  there  referred  to  a  sure  guide  in  all  your  difficul- 
ties. If  you  wish  to  understand  these  or  any  other  terms  in  the  law, 
you  have  only  to  consult  the  common  law  of  England." 

11  But  you  have  undertaken  to  give  us  the  explanation.  You  have 
called  murder  premeditated  and  manslaughter  unpremeditated  hom- 
icide. Did  you  intend  these  as  definitions  ?  If  you  did,  they  lead  to 
the  absurd  consequences  that  have  been  stated.  If  you  did  not,  your 
language  deceives  us;  you  should  have  added  the  other  distinctive 
characteristics  of  the  several  offences.  In  either  case  your  legislation 
is  miserably  defective.  Besides,  is  it  not  a  mockery  to  refer  me  to  the 
common  law  of  England  ?  Where  am  I  to  find  it  ?  Who  is  to  inter- 
pret it  for  me  ?  If  I  should  apply  to  a  lawyer  for  the  book  that  con- 
tained it  he  would  smile  at  my  ignorance,  and  pointing  to  about  five 
hundred  volumes  on  his  shelves,  would  tell  me  those  contained  a  small 
part  of  it;  that  the  rest  was  either  unwritten  or  might  be  found  in  books 
that  were  in  London  or  New  York,  or  that  it  was  shut  up  in  the  breasts 
of  the  judges  at  Westminster-hall.  If  1  should  ask  him  to  examine  his 
books  and  give  me  the  information  which  the  law  itself  ought  to  have 
afforded,  he  would  hint  that  he  lived  by  his  profession,  and  that  the 
knoweldge  he  had  acquired  by  hard  study  for  many  years  could  not 
be  gratuitously  imparted.  Your  law  therefore,  I  repeat,  is  absurd  in  its 


THE  SYSTEM  OF  PENAL  LAW.  81 

consequences,  if  taken  literally,  and  mocks  us  by  a  reference  to  an  in- 
accessible source  for  an  explanation  of  its  obscurities." 

What  could  a  candid  man  say  to  this  reply  ?  Every  such  man 
must  acknowledge  the  justice  of  the  reproach,  and  confess  that  such 
laws  are  a  disgrace  to  the  jurisprudence  of  his  country.  But  this  is 
not  all.  How  shall  we  characterize  the  legislation  that  confounds, 
under  the  same  denomination  of  crime(«),  intentional  and  negligent 
homicide;  and  permits  the  judge  to  punish  the  same  offence  by  the  fine 
of  a  cent,  or  imprisonment  at  hard  labour  during  a  term  equivalent  to 
the  usual  duration  of  human  life;  while,  for  premeditated  homicide,  un- 
der any  circumstances,  according  to  the  explanation  given  of  it  to  a 
majority  of  the  inhabitants,  the  uniform  punishment  is  death. 

A  few  months  after  the  passage  of  this  law,  the  same  legislature  at- 
tempted to  amend  it,  by  enacting  that  "all  murder  by  persons  lying 
in  wait,  or  any  other  kind  of  deliberate  and  premeditated  killing,"  or 
which  shall  be  committed  in  the  perpetration  of  certain  enumerated 
crimes,  "shall  be  deemed  murder  in  the  first  degree,  and  all  other 
kinds  of  murder  shall  be  deemed  murder  in  the  second  degree."  Here 
all  murder  by  premeditated  killing  forms  one.  degree;  but  premedita- 
tion is  the  only  characteristic  given  by  the  former  statute,  and  an  essen- 
tial one  given  by  the  common  law,  in  the  definition  of  all  kinds  of 
murder.  What,  therefore,  is  left  for  murder  in  the  second  degree  ? 

The  fifth  section  of  this  act  is  a  curious  specimen  of  legislative  in- 
difference. It  provides  that  a  prior  offender  shall  be  punished  as  is 
directed  by  this  act,  or  by  the  act  to  which  it  ie  a  supplement,  that  is, 
by  imprisonment  or  by  death;  but  whether  the  alternative  is  given  to 
the  choice  of  the  culprit,  to  the  direction  of  the  court,  or  to  chance,  the 
law  mantains  a  most  dignified  silence.  This  statute  has  been  repealed, 
but  it  was  not  until  the  year  1818  that  its  absurdity  forced  itself  upon 
the  notice  of  the  legislature.  A  similar  instance  may  be  found  in  a  law 
passed  the  25th  March  1813,  against  carrying  concealed  weapons. 
By  the  second  section  of  which  it  was  enacted,  that  if  any  one  should 
"  stab  or  shoot,  or  in  any  way  disable  another  by  such  concealed  weapons, 
or  should  take  the  life  of  any  person,  he  should  suffer  death,  or  such  other 
punishment  as  in  the  opinion  of  the  jury  should  be  just."  I  quote  the 
words  of  this  statute  as  an  instance  of  the  style  of  legislation  which  put 
it  in  the  power  of  the  jury  to  select  any  species  of  punishment,  from 
simple  fine  or  reprimand,  up  to  mutilation,  torture  and  death;  and  that 
too  for  giving  a  slight  wound,  or  in  any  manner  whatever  taking  the 
life  of  a  person,  even  in  self  defence,  for  there  is  no  exception  in  the 
law.  Yet  this  section  was  suffered  to  disgrace  our  penal  law  for  five 
years.  It  was  repealed  in  the  year  1818.  But  the  first  section  is  still 
in  force;  by  which  any  one  who  suspects  I  have  a  knife  in  my  pocket, 
may  obtain  a  warrant  to  take  me  before  a  justice,  who  is  authorized  to 
have  me  searched,  and  should  the  knife  be  found,  he  is  obliged  to  make 
me  pay  at  least  ten  dollars  to  the  person  who  gives  the  important  in- 
formation, and  as  much  to  the  state;  and  this  sum  may  at  his  discretion 
be  more  than  doubled. 

The  following  provisions,  taken  without  much  selection,  will  suffice 
to  show  the  want  of  proportion  between  punishments  and  offences  that 

(a)  See  the  different  divisions  of  manslaughter  by  the  English  law — into  that  by  suddeo 
provocation,  se  defendendo,  and  fortuitously  in  the  performance  of  an  unlawful  act. 

L 


82  INTRODUCTORY  REPORT  TO 

now  reigns  in  our  laws.  To  break  the  iron  collar(a)  of  a  slave  must 
be  punished  by  a  fine  of  at  least  two  hundred  dollars  and  imprisonment 
for  at  least  six  months.  While  the  court  may  punish  him  who  kid- 
naps a  free  person  with  a  fine  of  ten  cents(6)  ;  and  even  for  a  second 
conviction  for  this  odious  crime  there  is  no  maximum,  and  the  imprison- 
ment may  be  only  for  a  day. 

By  another  statute  now  in  force,  "  if  a  woman  shall  be  delivered  of 
any  issue  of  her  body,  and  shall  endeavour  privately,  by  drowning  or 
secret  burying  thereof,  or  in  any  other  way,"  .  ..."  so  to  conceal  the 
death  thereof  that  it  may  not  come  to  light  whether  it  be  born  alive  or 
not,"  she  and  those  who  aid,  &c.  shall  be  imprisoned  not  less  than  five 
nor  more  than  fourteen  years.  This  is  a  refinement  upon  the  repro- 
bated statute  of  James  1st,  which  is  not  more  objectionable  from  the 
severity  of  its  penalty  than  the  want  of  principle  which  made  the  con- 
cealment of  the  birth  such  evidence  of  the  murder  as  to  throw  the  con- 
trary proof  on  the  accused.  But  even  that  statute  permitted  the 
unfortunate  mother  to  exonerate  herself  by  showing  that  the  child  was 
born  dead.  Ours,  on  the  contrary,  inflicts  the  penalty  for  the  offence 
of  concealment,  or  the  private  burial  of  a  monstrous  or  abortive  birth. 
That  statute  confines  its  provisions  to  the  case  of  a  child  which,  if  born 
alive,  would  have  been  a  bastard.  Ours,  indiscriminate  in  its  provis- 
ions, makes  no  such  distinction  ;  neither  the  unfortunate  victim  of 
seduction  nor  her  nearest  relations  are  permitted  to  avail  themselves  of 
the  accident  or  the  dispensation  of  providence,  which  may  offer  for  the 
concealment  of  her  weakness  ;  and  the  modest  respectable  matron  must 
expose  to  the  world — But  enough,  the  disgust  due  to  the  law 
would  be  excited  by  the  work  which  details  its  consequences,  were  the 
subject  to  be  pursued  further.  It  cannot  escape  remark  that  the  same 
punishment  is  incurred  for  the  crime  of  drowning,  which,  if  I  under- 
stand the  language,  can  only  be  applied  to  a  living  infant,  that  is  de- 
nounced for  interring  a  dead  one. 

A  legislation  equally  vacillating  and  inconsistent  with  true  principles, 
is  that  on  the  subject  of  unsuccessful  attempts  to  commit  homicide. 
It  began  by  the  law  of  the  7th  June  1806.  By  that  law,  to  administer 
poison,  to  stab,  or  to  shoot,  with  intent  to  murder,  is  punishable,  with 
death.  But  by  a  prior  law,  to  which  1  have  before  referred,  one  species 
of  murder  was  punishable  only  by  imprisonment.  A  strong  induce- 
ment was  here  offered  the  offender  if  he  dreaded  death  more  than  labour, 
to  adopt  the  ferocious  motto  of  the  highland  chieftain,  by  making  sure 
work. 

In  1813,  stabbing  or  shooting  with  any  intent,  if  done  with  a  con- 
cealed weapon,  was  death.  In  1818  this  law  was  repealed,  and  the  act 
of  1806  remained  unmodified  until  6th  of  March  1819.  It  was  made 
punishable  with  death  to  shoot,  stab  or  thrust  any  one  with  a  dan- 
gerous weapon,  with  intent  to  murder,  if  done  by  lying  in  wait  or  in 
the  attempt  to  commit  any  arson,  rape,  robbery  or  burglary  ;  and  by 
the  second  section,  shooting,  stabbing,  thrusting  with  a  dangerous  wea- 
pon with  intent  to  commit  murder,  under  any  other  circumstances, 
is  punishable  by  hard  labour  only  from  one  to  twenty-one  years,  a  wide 
held  tor  the  exercise  of  judicial  discretion. 

This  act  creates  a  serious  ambiguity  in  each  of  its  sections.     What 

(a)  Law  6th  March  1819,  section  5.  (&)  Ib.  section  6. 


THE  SYSTEM  OF  PENAL  LAW.  83 

is  a  dangerous  weapon  ?     A  cambric  needle  thrust  into  the  spine  is  as 
dangerous  as  a  sword.     Yet  it  can  scarcely  be  called  a  weapon. 

Again,  a  thrust  with  the  fist  of  an  athletic  man  without  any  weapon 
at  all  may  be  as  dangerous  as  any  offensive  weapon.  This  result  then 
may  follow  ;  if  in  the  perpetration  of  robbery,  the  offender  attempt  to 
murder  a  defenceless  man  or  a  child  by  thrusts  with  his  fists,  or  to  com- 
mit a  rape  and  murder  his  victim  by  endeavouring  to  smother 
her  with  a  blanket,  although  he  is  prevented  from  the  accomplishment 
of  his  crime  only  by  the  rescue  of  the  sufferer,  he  escapes  the  penalty 
of  the  law  ;  but  if  in  attempting  the  same  crimes  he  should  be  attacked 
and  make  an  effectual  thrust  with  a  sword  in  the  heat  of  a  scuffle,  with 
intent  to  kill  (for  all  killing  in  the  perpetration  of  the  robbery  would 
be  murder),  he  would  suffer  death,  although  the  attempt  should  be 
abandoned  as  soon  as  it  was  made,  or  although  it  was  only  made  to  de- 
fend himself  from  arrest. 

Again,  there  is  no  positive  repeal  of  the  first  section  of  the  law  of  the 
7th  June  1806.  But  the  second  section  of  the  one  we  are  considering 
provides,  that  to  shoot,  stab,  or  thrust  with  a  dangerous  weapon,  and 
with  intent  to  murder,  shall  in  all  other  cases  but  those  provided  for  by 
the  first  section,  be  punished  by  hard  labour  only.  This  last  enact- 
ment, therefore,  is  not  so  broad  as  that  of  1806,  which  does  not  contain 
the  qualification  of  a  dangerous  weapon  ;  therefore,  as  the  law  now 
stands,  a  stab  with  an  instrument  that  could  not  come  within  the  de- 
scription of  a  weapon,  would  now  under  the  first  act  be  punished  with 
death,  while  the  more  heinous  case  of  a  stab  with  the  same  intent  with 
a  dangerous  weapon,  might  be  punished  with  imprisonment  for  one  year 
only. 

Once  more  let  me  respectfully  ask  whether  this  part  of  our  juris- 
prudence does  not  want  revision  ?  But  this  is  only  one  head  ;  the 
same  or  greater  defects  may  be  found  in  all.  The  same  enacting,  ex- 
plaining, implied  repealing  and  accumulation  of  provisions  on  the  same 
subject,  until  in  the  short  period  of  twenty  years,  our  legislation  has 
become  so  confused  that  the  people,  and  (the  truth  is  so  evident  that  I 
shall  not  offend  them  when  I  add)  their  representatives  too,  are  inca- 
pable of  discovering  what  the  law  requires  or  forbids.  The  following 
instances  may  justify  my  assertion. 

By  the  act  of  19th  March  1818,  the  punishment  of  accessaries  after 
the  fact(a)  to  any  crime,  of  course  including  murder,  are  to  be  punished 
by  fine  and  imprisonment,  at  the  discretion  of  the  court ;  and  that  dis- 
cretion^) is  limited  in  all  cases  to  fine  of  one  thousand  dollars  and 
imprisonment  for  two  years.  On  the  very  next  day  a  law  is  passed 
punishing  the  accessaries  after  the  fact  of  burglary(c)  by  solitary  con- 
finement for  one  year  and  imprisonment  at  hard  labour  for  five  years. 
So  that  you  may  aid  the  escape  of  a  murderer,  by  our  laws,  at  infinitely 
less  risk  than  you  incur  by  performing  the  like  service  to  one  who 
has,  at  night,  only  lifted  the  latch  of  a  sugar-house(d)  and  stolen  a  pint  of 
molasses. 

(a)  Act  19th  March  1819,  section  9.  (&)  Ib.  section  12. 

(c)  Act  20th  March  1818,  section  6. 

(d)  By  the  5th  section  of  the  act  20th  March  1818,  breaking  into  a  sugar-house  at  night, 
with  intent  to  steal,  is  made  burglary. 


84  INTRODUCTORY  REPORT  TO 

Larceny(a)  is  punished  by  imprisonment  at  hard  labour  for  any 
term  not  exceeding  two  years  ;  while  the  lesser  offence,  of  obtaining 
property  on  false  pretences,  incurs  the  corporal  punishment  of  whipping 
and  imprisonment  for  one  year(6)  ;  and  by  this  law,  such  fraud  is 
somewhat  strangely  declared  to  be  an  offence  against  the  public  peace. 

By  the  act  of  6th  March  1819,  the  aiding(c)  a  slave  to  run  away  is 
punishable  by  imprisonment  at  hard  labour,  not  less  than  two  or  more 
than  twenty  years  ;  while  kidnapping  a  freeman(«?)  incurs  only  fine, 
not  to  exceed  one  thousand  dollars,  and  imprisonment  not  to  exceed 
fourteen  years.  The  judge  must  punish  the  first  crime  at  least  by  two 
years  imprisonment,  but  may  suffer  the  greater  offender  to  escape  with 
a  nominal  punishment. 

Not  to  burthen  this  report  with  a  longer  enumeration  of  these  dis- 
crepancies, I  have  thrown  into  a  tabular  form  an  account  of  all  the 
statute  offences  with  their  present  and  former  punishments.  A  few  other 
instances  of  incorrect  legislation  in  our  present  penal  law  will  enforce 
the  necessity  of  reform.  One  embarrassing  defect  arises  from  the  nu- 
merous dissimilar  provisions  in  relation  to  the  same  subject  in  successive 
statutes  which  contain  no  repealing  clauses  ;  leaving  it  in  many  instan- 
ces very  difficult  to  determine  whether  the  penalty  was  intended  to  be 
changed  or  commuted.  Slave  stealers,  by  the  act  of  1805,  are  to  be 
publicly  whipped  and  imprisoned  at  hard  labour  not  less  than  seven  nor 
more  than  fourteen  years.  By  the  act  of  6th  March  1819,  they  are  to 
be  imprisoned  not  less  than  two  nor  more  than  twenty  years.  Was 
the  intent  of  the  latter  statute  to  take  away  the  whipping,  or  only  to 
extend  the  limits  of  judicial  discretion  as  to  the  term  of  imprison- 
ment^) ? 

Nearly  the  same  difficulty  occurs  as  to  larceny.  By  the  first  law, 
whipping  and  imprisonment  in  the  alternative  of  not  restoring  the  goods 
stolen,  is  the  punishment.  The  subsequent  act  only  declares  that  it 
shall  be  punished  by  imprisonment. 

Stealing  or  robbery  of  bonds,  bills  or  notes,  is  not  larceny  at  common 
law.  It  is  made  so  by  statute  in  England  ;  and  as  lacerny  was  to  be  de- 
fined by  the  common  law,  not  by  statute,  they  are  enumerated  in  the 
act  of  1805  ;  and  it  is  declared  that  the  stealing  of  them  "shall  be  pun- 
ished in  the  same  manner,  both  as  to  principal  and  accessary,  as  robbery 
or  larceny  of  goods  and  chattels.  Does  this  relate  to  the  punishment 
prescribed  by  that  act  ?  or  is  it  prospective,  so  as  to  adapt  itself  to  any- 
other  punishment  that  may  afterwards  be  provided  for  larceny  ?  If  it 
is  not,  stealing  of  bonds  and  notes,  since  the  passage  of  the  last  statute,  is 
punished  differently  from  other  larceny. 

In  all  these  instances,  and  they  might  be  multiplied,  there  is  no  ex- 
press repeal  of  the  prior  statutes  ;  and  as  there  is  nothing  incompatible 
between  the  punishments  of  whipping  and  imprisonment,  the  strongest, 
perhaps  the  only  good  foundation  for  an  implied  repeal  is  taken  away. 
Yet  the  degrading  punishment  inflicted  by  the  first  law  is  so  repugnant 
to  the  feelings  of  freemen,  and  I  may  add,  in  a  country  like  ours,  so 

(a)  Act  19th  March  1S18,  section  1.  (6)  Act  3d  July  1805,  section  2. 

(c)  Ib.  section  3.  (d)  Ib.  section  6. 

(e)  I  have  an  impression  that  the  learned  judge  of  the  criminal  court  of  New-Orleans  ex- 
pressed a  leaning  towards  the  latter  alternative.  If  I  am  not  mistaken  in  this,  the  doubt  is 
supported  by  very  high  authority. 


THE  SYSTEM  OF  PENAL  LAW.  85 

dangerous  to  its  peace,  that  the  rules  of  construction  have  been  disre- 
garded, and  a  new  instance  afforded  in  which  the  duty  of  the  legislature 
has  been  transferred  to  the  judiciary.  They  have  hitherto  exercised  it 
with  discretion  ;  but  these  doubtful  laws  may  hereafter  be  made  en- 
gines of  oppression  as  well  as  of  favour. 

Another  evil  in  our  present  legislation  is  the  loose  manner  in  which 
offences  are  defined.  I  will  not  here  repeat  the  objections  arising 
from  the  references  to  the  foreign  law,  although  they  press  upon  the 
mind  in  every  view  that  is  taken  of  the  subject ;  but  there  are  cases  in 
which  even  the  obscure  light  of  the  common  law  is  denied  us.  The 
statute  of  22d  February  1817  enacts,  "  that  every  person  who  shall 
commit  the  abominable  crime  of  incest  shall  suffer  imprisonment  at 
hard  labour  for  life."  Here  our  guide  entirely  fails  us.  Incest  was  a 
crime  unknown  to  the  common  law.  During  the  rule  of  the  Puritans 
in  England,  that,  and  every  species  of  incontinence,  were  made  capital 
crimes.  The  statute,  we  are  told,  was  not  renewed  at  the  restoration, 
and  I  am  ignorant  what  definition  it  gave  to  the  crime.  With  us,  if 
the  Spanish  laws  are  repealed,  the  law  must  be  a  dead  letter,  or  the 
judges  must  make  a  law  explaining  the  term.  If  the  Spanish  laws  are 
not  repealed,  we  must  look  to  them  for  the  definition  ;  and  if  they 
are,  we  may.  But  what  will  in  either  case  be  the  serious  conse- 
quences ?  In  the  definition  of  this  crime  by  that  law  we  have  seen 
that  incest  means  a  carnal  connexion  between  parties  related,  either  by 
affinity  or  consanguinity,  to  the  fourth  degree  ;  and  as  the  degrees  are 
counted  by  the  canon  law,  it  would  bring  within  the  penalties  of  this 
law  not  only  the  children  but  the  grandchildren  of  brothers  ;  and 
even  if  we  look  to  the  English  law  of  matrimony,  as  well  as  to  the 
Spanish  statute,  the  sister  of  a  wife  is  included  in  the  prohibition. 
After  the  death  of  the  wife  it  is  not  uncommon  for  the  husband  to 
marry  her  sister.  Suppose  such  a  connexion  to  be  lawfully  made  in 
New  York,  and  the  parties  remove  to  New  Orleans  where  they  con- 
tinue to  cohabit.  By  adopting  either  of  these  definitions  this  is  the 
abominable  crime(a)  intended  by  the  statute,  for  which  both  of  them 
must  be  consigned  to  the  penitentiary  for  life.  What  rule  shall  we 
resort  to  in  order  to  give  efficacy  to  this  highly  penal  statute  ?  The 
law  gives  no  guide  ;  and  it  would  be  monstrous  to  suppose  the  uncon- 
stitutional intent,  that  it  should  be  framed  or  adopted  by  the  judges. 

By  the  act  of  the  7th  June  1806,  any  judge,  justice  of  the  peace,  sheriff 
or  other  civil  officer,  who  shall  be  guilty  of  any  misdemeanor  in  the 
execution  of  their  respective  offices,  shall  suffer  fine  or  imprisonment, 
or  both.  Now,  without  repeating  the  argument  formerly  used, 
that  the  reference  to  the  law  of  England  does  not  extend  to  offences 
under  this  law,  let  us  ask  what  is  misdemeanor?  Christian,  in  his 
notes  to  Blackstone,  says,  "  in  the  English  law,  misdemeanor  is 
generally  used  in  contradistinction  to  felony  ;  and  misdemeanors 
comprehend  all  indictable  offences  which  do  not  amount  to  felony." 
But,  by  our  law,  there  can  be  no  indictable  offence  but  those  created 
by  statute  ;  but  every  statute  that  has  created  an  offence  with  us  has 
also  prescribed  the  punishment.  What  therefore  has  this  law  to  ope- 
rate upon  ?  Nothing,  if  it  relate  only  to  offences  that  were  indictable 
before ;  but  if  it  mean  something  else,  and  is  intended  to  create  a  new 

(a)  Vide  7  Part.  tit.  18, 1.  1. 


86  INTRODUCTORY  REPORT  TO 

offence,  that  offence  ought  to  have  been  defined  ;  or  else  the  court  have 
not  only  the  judicial  task  of  apportioning  within  the  prescribed  limits 
what  shall  be  the  punishment,  but  also  the  legislative  duty  of  declaring 
what  acts  shall  be  misdemeanors. 

Other  instances  of  this  defect  might  be  selected,  but  I  hasten  to  close 
the  catalogue  with  pointing  out  another  glaring  and  dangerous  fault  in 
our  present  laws.     The  almost  entire  abandonment  to  the  judiciary  of 
that  part  of  the  legislative  duty,  which  consists  in  designating  the  pun- 
ishment that  shall  be  inflicted  for  each  species  of  ofl'ence.     This  is  a 
function  perfectly  consistent  with  that  which,  in  all  good  jurisprudence, 
is  committed  to  the  judge  of  apportioning  within   certain  limits,  the 
quantity  of  punishment  to  the  individual  case.     A  wise  legislator  so 
arranges  and  classifies  the  offences  he  means  to  punish,  that,  as  far  as 
may  be  practicable,  a  slight  variation  from  the  punishment  assigned  to 
the  designated  crime  may  accommodate  it  to  the  least  degree  of  evil 
that  can  be  attached  to  its  commission  ;  he  gives  this  discretion  in  all 
cases  in  which  different  shades  of  guilt  may  be  supposed  ,to  have  at- 
tended the  same  act ;  he  withholds  it  only  in  cases  where  the  least  de- 
gree of  depravity  deserves  the  full  punishment  that  is  denounced,  and 
it  is  not  convenient  to  increase  the   penalty  against  the  more  immoral 
offenders,  but  he  throws  all  those  shades  of  crime  that  he  can  foresee 
into  as  many  different  classes  as  he  can  conveniently  arrange,  and  he 
restricts  the  discretion  he  gives  to  the  judge  within  the  narrowest  limits 
in  which  the  distribution  of  individual  justice  will  permit  to  be  exer- 
cised.    The  reasons  for  this  are  evident  and  conclusive.     Every  penalty 
for  the  infraction  of  a  law  ought  to  be  certain.     Where  the  same  act 
may  be  punished  by  a  slight  or  a  heavy  penalty,  the  offender  will 
always  calculate  on  the  slightest  punishment ;  and  the  infliction  of  the 
heaviest  will,  for  the  most  part,  be  considered  as  an  oppression.     But 
there  is  a  more  serious  objection   to  giving  a  wide  extent  of  discre- 
tionary power  to  the  judge.     To  a  certain  extent  his  decrees  may  be 
considered  as  having  the  effect  of  ex  post  facto  law,  for  the  punishment 
is  not  determined  until  the  offence  is  committed.     The  prohibition  of 
the  law,  indeed,  existed  before,  but  the  sanction  is  created  afterwards. 
Hatred,  envy  and  the  other  malignant  passions  may  sometimes  influ- 
ence the  mind  of  the  judge  ;  avarice  may  corrupt  it ;  or  the  more  amia- 
ble motives  of  friendship  or  compassion  may  give  it  an  unconscious 
bias  in  the  exercise  of  his  functions  ;  but  the  legislator,  who  cannot 
know  when  he  frames  his  law  upon  whom  its  penalties  may  fall,  can 
neither  incur  nor  merit  these  suspicions.     He,   therefore,  ought  to 
assign  the  punishment  to  the  offence  ;  and,  in  certain  cases  leave  to 
the  discretion  of  the  judge  a  power  of  modifying  it  to  the  circumstances 
of  the  offender.     In  pecuniary  penalties  a  considerable  range  must  ne- 
cessarily be  given  to  this  power  ;  for  a  fine  that  would  be  ruin  to  one, 
would  not  be  felt  as  a  punishment  by  another.     In  a  less  degree  this 
applies  to  simple  imprisonment,  and  least  of  all  to  penitentiary  punish- 
ment ;  but  the  difference  in  their  nature  between  the  two  first  and  the 
last  of  these  punishments  is  so  great,  that  it  very  rarely,  if  ever,  ought 
to  be  placed  in  the  power  of  a  judge  to  inflict  the  one  or  the  other,  at 
his  discretion.     The  circumstances  that  would  render  the  last  proper 
for  offences  in  which  the  first  would  generally  be  an  adequate  punish- 
ment, ought,  if  possible,  to  be  detailed  and  form  a  different  class  of 
crime.     The  inefficiency  of  pecuniary  fines  to  punish  the  rich,  without 


THE  SYSTEM  OF  PENAL  LAW.  87 

putting  them  so  high  as  to  ruin  the  poor,  renders  it  indispensable  to 
place  the  alternative  between  fine  and  simple  imprisonment  in  the  hands 
of  the  judge. 

Let  us  now  examine  how  far  our  present  statutes  conform  to  these 
principles. 

Kidnapping  a  free  person  is  a  crime,  which,  being  destructive  of  per- 
sonal liberty,  is  in  the  highest  degree  injurious  to  society;  and  more- 
over supposes  a  confirmed  malignity  of  heart,  and  which  of  all  others 
would  seem  to  admit  of  no  alleviating  circumstances;  yet  the  statute 
permits  the  court  to  fine  the  offender  one  cent  only  or  to  extend  it  to 
one  thousand  dollars,  and  to  add  imprisonment  at  hard  labour  for  four- 
teen years.  Is  not  this  completely  giving  to  the  judge  the  power  of 
legislation  after  the  fact,  upon  an  offence  of  the  deepest  die  ?  He  may 
suffer  an  offender  to  escape  with  a  nominal  fine,  or  he  may  imprison 
him  for  a  term  more  than  commensurate,  perhaps,  with  his  chance  of 
life.  Let  it  be  remembered,  too,  that  this  is  a  law  for  the  security  of 
personal  freedom;  and  contrast  it  with  the  penalty  for  stealing  a  slave, 
which,  by  a  prior  section  of  the  same  law  cannot  be  less  than  two  years 
at  hard  labour.  But  here  again  though  the  criminal  cannot  escape,  as 
in  theother  instance,  with  impunity,  his  punishment  may  at  the  pleasure 
of  the  judge  be  increased  tenfold,  by  a  sentence  to  twenty  years  im- 
prisonment at  hard  labour.  And  it  may  once  more  be  asked,  what  cir- 
cumstance in  the  crime  of  stealing  a  slave'  can  make  two  years  impris- 
onment a  sufficient  punishment  for  one  offender,  while  twenty  is  not 
too  much  for  another  ? 

I  can,  in  this  instance,  imagine  two  answers  to  this  question,  but  each 
of  them  disclose  a  fault  in  legislation  equally  grave,  at  least  with  the 
one  they  might  otherwise  excuse.  The  first  is  that  the  legislature  have 
not  provided  as  they  might  have  done  for  the  case  of  a  repeated  offence, 
and  that  the  higher  grades  of  punishment  are  intended  to  supply  this 
defect.  But  if  such  was  the  intention  it  ought  to  have  been  expressed; 
the  court  then  would  not  have  had  the  power  which  they  now  have  of 
awarding  the  same  punishment  for  a  first,  that  was  intended  for  a  second 
or  third  offence.  Secondly,  it  may  be  said  that  the  offence  described 
in  the  statute  is  not  only  stealing  a  slave,  but  aiding  one  to  escape  from 
his  master,  which  are  two  very  different  offences — one  deserving  the 
highest,  perhaps,  and  the  other  the  lowest  penalty  of  the  law.  If  this 
be  so,  it  enhances  instead  of  excusing  the  incongruity  of  the-act,  by 
confounding  two  distinct  offences  in  the  same  clause,  and  permitting  the 
court  to  punish  one  offence  by  the  penalty  intended  for  the  other. 

Take  another  instance  from  the  same  act.  To  shoot,  stab  or  thrust 
by  lying  in  wait,  or  in  the  perpetration  or  attempt  to  perpetrate  arson, 
rape,  robbery  or  burglary,  is  death,  if  done  with  intent  to  murder  and 
with  a  dangerous  weapon;  but  if  done  with  the  same  intent  to  murder, 
but  not  by  lying  in  wait,  or  not  in  the  perpetration  of  either  of  the  crimes 
above  enumerated,  it  may  be  punished  by  simple  imprisonment  for 
one  year  only,  or  by  imprisonment  at  hard  labour  for  twenty-one 
years.  According  to  the  English  definition  of  terms  here  can  be  no 
gradation  of  crime.  The  party,  if  convicted,  must  have  given  the  stroke 
not  in  the  heat  of  passion  only,  for  then  it  would  be  a  different  offence, 
but  with  the  deliberate  malicious  design  to  murder.  The  design  must 
have  failed,  not  from  any  change  of  purpose  in  the  offender,  but  con- 
trary to  his  will.  When  combined  with  an  intent  to  commit  certain 


88  INTRODUCTORY  REPORT  TO 

crimes,  we  see  that  there  is  no  discretion  left  to  the  judge:  the  punish- 
ment is  death.  Yet,  when  the  same  offence  is  combined  with  the  in- 
tention to  commit  any  other  crime,  perhaps  not  less  atrocious, 
one  year  of  simple  imprisonment  may  be  deemed  a  sufficient  penalty. 
To  exemplify  the  operation  of  this  law:  if,  in  the  attempt  to  set  fire  to  a 
building  not  worth  five  dollars(a),  the  offender,  with  intent  to  murder, 
should  shoot  at  and  wound  the  person  who  discovers  and  prevents  him, 
there  is  no  discretion;  the  punishment  is  death.  But  if  he  in  like  man- 
ner wound  the  person  who  prevents  him  from  assassinating  his  father, 
or  from  poisoning  a  whole  community,  it  is  in  the  power  of  the  court 
to  let  him  escape  with  one  year's  simple  imprisonment. 

This  example  is  taken,  almost  without  selection,  from  a  system  which 
is  considered  by  some  as  too  perfect  to  need  any  amendment  !  We 
must  be  at  a  loss  in  this  species  of  legislation,  however,  what  most  to 
admire;  the  severity  which  punishes  the  attempt  to  commit  a  crime 
with  the  same  awful  penalty  that  it  inflicts  on  its  consummation;  the  con- 
fusion of  principle  which  thus  punishes  the  attempt  to  commit  the 
highest  crime  because  it  is  made  in  the  perpetration  of  an  inferior 
offence;  the  want  of  judgment  and  indifference  with  which  the  selection 
of  these  lesser  offences  is  made;  or  the  jealous  denial  of  discretionary 
power  to  the  judge  in  the  one  instance,  and  the  prodigality  of  confi- 
dence with  which  it  is  lavished  on  him  in  the  other.  The  table  at  the 
end  of  this  report  will  give  so  many  examples  of  this  defect  in  our 
system,  that  1  need  not  multiply  them  here. 

It  might  seem  an  invidious  task  to  proceed  and  develope  the  evils 
that  pervade  our  penal  jurisprudence,  from  which,  however,  I  should  not 
shrink  were  it  necessary.  Enough  has  been  said  to  show  : 

That  as  respects  certain  crimes,  the  law  to  which  we  are  referred  for 
their  definition,  prosecution  and  the  evidence  required  on  their  trial, 
is  not  only  in  itself  uncertain,  but  is  placed  entirely  beyond  the  reach  of 
the  people. 

That  even  that  rule,  uncertain  and  difficult  of  access  as  it  is,  has  not 
been  provided  for  offences  against  any  of  the  statutes  passed  since  that 
of  May  1805. 

That  if  a  long  list  of  oppressive  and  absurd  penal  laws,  forming  a 
part  of  those  by  which  the  country  was  governed  prior  to  the  cession, 
are  not  now  in  force  according  to  the  strictest  construction  of  law,  at 
least  reasonable  doubts  may  be  entertained  on  that  subject,  and  that  in 
bad  times  they  may  be  made  the  instrument  of  oppression. 

That  our  penal  statutes  remedy  none  of  these  defects  : 

They  repeal  none  of  the  ancient  laws  : 

They  give  new  penalties  for  offences  punishable  by  former  statutes, 
leaving  it  doubtful  whether  they  are  intended  as  substitutes  for  the  old 
punishments  or  as  additions  to  them  : 

They  punish  slight  offences  with  undue  severity,  and  impose  incon- 
siderable penalties  on  more  dangerous  crimes  : 

They  give  in  some  instances  to  the  judiciary  a  discretion  trenching 
on  legislative  power,  and  wholly  deny  it  in  others  where  justice  and 
humanity  requires  its  exercise  : 

They  leave  unpunished  many  acts  and  omissions  injurious  to  society, 

(a)  By  the  act  of  22d  February  1817,  burning  any  building  is  made  arson. 


THE  SYSTEM  OF  PENAL  LAW.  89 

while  some  others  are  made  offences  which  might  be  repressed  by  pub- 
lic opinion  or  private  suit. 

They  are  multiplied  without  necessity  on  the  same,  or  different  modi- 
fications of  the  same  offence  ;  giving  occasion  frequently  to  doubts 
whether  the  new  statute  is  intended  as  a  substitute  for  or  an  addition  to 
the  old. 

They  are  deficient  in  precision  of  language  and  in  the  order  required 
by  proper  arrangement. 

Such  laws  are  unworthy  of  an  enlightened,  and  dangerous  to  a  free 
people  ;  and  if  you  had  not  given  the  pledge  contained  in  your  law  of 
1S20;  if  you  had  not  attracted  the  attention  and  excited  the  hopes  of 
the  good,  and  the  wise,  and  the  liberal  throughout  the  civilized  world — 
attention  which  is  still  earnestly  fixed  upon  you  !  hopes  which  you 
cannot  without  dishonour  fail  to  realize  ;  if  you  could  be  insensible  to 
the  noble  distinction  of  emerging  from  the  subordinate  rank  of  the 
youngest  member  in  the  union,  taking  the  lead  in  a  most  important  re- 
form, making  by  your  example  a  new  era  in  the  history  of  penal  juris- 
prudence ;  if  you  could  consent  to  renounce  the  glorious  privilege  of 
conducting  your  country  to  the  best  pre-eminence  among  nations,  and 
associating  your  own  names  with  those  of  the  benefactors  of  mankind  ; 
if  you  could  be  influenced  by  the  timid  fear  of  innovation  or  the  sense- 
less clamour  of  prejudice  to  throw  away  this  rare  occasion  of  founding 
a  glorious  reputation  for  yourselves  and  for  your  country,  on  the  solid 
and  permanent  basis  of  public  good  ;  if  it  were  possible  for  you  to  be 
blind  to  these  advantages,  deaf  to  these  arguments,  yet  you  could  not, 
without  an  entire  abandonment  of  official  duty,  any  longer  delay  to 
remedy  the  evils  which  are  thus  brought  to  your  view,  and  others  as 
great  which  cannot  escape  your  discernment. 

Legislative  functions  are  in  the  most  ordinary  times  attended  with 
high  responsibility.  Yours,  from  the  duty  which  your  predecessors 
have  imposed  upon  you,  are  peculiarly  so.  From  the  performance  of 
this  duty  there  is  no  escape.  The  defects  of  your  penal  laws  are  ar- 
rayed before  your  eyes.  Former  legislative  acts  have  declared  that  they 
exist,  and  they  have  established  principles  and  laid  down  rules  by  which 
laws  are  to  be  framed  for  their  removal.  Those  laws  are  now  submitted 
for  your  consideration.  You  cannot  avoid  acting.  It  is  impossible  to 
say  that  the  evils  are  imaginary.  You  must  then  either  declare  that 
the  principles  for  correcting  them,  heretofore  unanimously  established 
by  the  representatives  of  the  people,  are  erroneous,  or  that  the  plan  pre- 
pared is  not  drawn  in  conformity  with  them.  In  either  alternative  the 
duty  of  correcting  the  principles  or  reforming  the  work  is  one  that 
must  be  performed.  For,  disguise  it  as  we  may,  it  is  a  truth  which 
must  be  told'and  ought  to  be  felt ;  that,  circumstanced  as  you  are,  should 
you  shrink  from  the  performance  of  these  duties,  to  you  will  be  attri- 
buted the  future  depredations  of  every  offender  who  escapes  punishment 
from  the  ambiguity  of  your  laws  ;  the  vexations  of  all  who  suffer  by 
their  uncertainty;  the  general  alarm  caused  by  the  existence  of  your 
unknown  and  unrepealed  statutes;  the  depravity  of  those  who  are  cor- 
rupted by  the  associations  into  which  they  are  forced  by  your  prison 
discipline;  the  unnecessary  and  violent  death  of  the  guilty  ;  and,  worse 
than  all  this,  legislators  !  the  judicial  murder  of  the  innocent  who  may 
perish  under  the  operation  of  your  sanguinary  laws.  All  this,  and 
M 


90 

more  will  be  laid  to  your  charge(«),  if  yon  do  not  embrace  the  oppor- 
tunity that  is  afforded  to  reform  them  ;  for  the  continuance  of  every 
bad  law,  which  we  have  the  power  to  repeal,  is  equivalent  to  its  enact- 
ment. Whether  the  mode  of  reform  now  offered  is  the  one  most  proper 
to  be  adopted  is,  with  unfeigned  diffidence,  submitted  to  the  superior 
wisdom  of  the  general  assembly  ;  but  that  some  change  is  necessary, 
is  boldly  and  without  fear  of  contradiction  advanced  as  an  irresistible 
conclusion  from  the  view  that  has  been  taken  of  the  state  of  our  penal 
jurisprudence.  Of  what  nature  shall  that  change  be  and  to  what  extent 
shall  it  be  carried,  are  questions  which  come  now  to  be  considered. 
A  repeal  of  all  the  Spanish  penal  laws,  and  of  such  of  our  own  statutes  as 
throw  any  uncertainty  in  the  construction  of  those  which  we  choose 
to  retain,  would  relieve  us  of  part  of  the  difficulty  ;  but  this  would 
be  a  palliative  and  give  us  only  a  partial  relief.  Other  cases  must  be  pro- 
vided for  by  new  statutes  ;  and  what  security  can  we  have,  while  this 
patch-work  system  continues,  that  in  a  few  years  the  same  or  greater 
incongruities  will  not  be  found  in  your  laws?  But  supposing  this  diffi- 
culty to  be  surmounted  or  not  to  exist,  a  greater  remains.  Where  are 
we  to  look  for  our  rules  and  forms  of  proceeding  from  the  arrest  to  the 
execution  ?  In  what  statute  are  contained  the  rules  of  evidence,  and 
where  shall  we  find  the  regulations  by  which  our  penitentiaries  and 
other  prisons  are  to  be  governed  ?  The  Spanish  laws  of  procedure,  if 
they  are  unrepealed,  do  not  fit  our  institutions  ;  their  rules  of  evidence 
we  have  seen  will  exclude  nearly  all  testimony  but  that  forced  from  the 
lacerated  limbs  of  a  tortured  accomplice:  and  their  prison  discipline  we 
surely  shall  not  be  tempted  to  establish.  We  cannot  again  resort  to  the 
concise  but  comprehensive  legislation  formerly  employed.  We  cannot 
refer  to  and  adopt  the  common  or  any  other  law,  either  en  masse  or 
generally,  on  any  given  branch  of  jurisprudence.  That  door  is  consti- 
tutionally closed.  No  more  legislation  by  reference.  This  device, 
excusable  from  necessity(6)  in  the  infancy  of  our  political  existence,  is 
wisely  prohibited  to  our  maturer  understanding.  Representatives  can 
no  longer  jeopardize  the  fortunes,  reputations  and  lives  of  their  con- 
stituents by  the  use  of  an  unintelligible  phrase  ;  they  must  understand 
and  express  what  they  mean  ;  they  must  do  it  clearly  and  in  detail. 
Foreign  laws  can  no  longer  be  imported  by  the  package,  or  described  in 
the  act  of  introducing  them  as  goods  are  in  the  bill  of  lading,  "  contents 
unknown"  ;  but  in  the  imperative  words  of  the  constitution,  the  gen- 
eral assembly  "  shall  in  all  casesspecify  the  several  provisions  of  the  laws 
they  may  enact." 

(a)  "Lawgivers  should  reflect  that  they  are  immediately,  arid  in  effect,  the  executioners 
of  every  fellow-citizen  who  suffers  death  in  consequence  of  any  penal  law." — Eden.  Pe- 
nal Law. 

(b)  The  first  legislative  council — highly  respectable  men,  but  not  qualified  by  their  edu- 
cation or  pursuits  to  the  task  of  legislation— did  all  that  could  be  expected  from  them.    They 
called  to  their  assistance  in  this  branch  a  gentleman  (James  Workman,  Esq.)  whose  natural 
as  well  as  acquired  powers  eminently  fitted  him  for  the  task,  and  whose  principles  and  in- 
tegrity always  direct  his  exertion  in  the  public  service.    His  high  professional  as  well  as 
private  character  justified  the  choice.     But  they  committed  the  great  error  of  limiting  him 
as  to  time.    What  human  exertion  could  do,  he  performed.     He  could  not,  as  I  know  he 
wished,  offer  a  complete  system.  All  he  could  give  was  a  general  summary,  and  a  reference 
to  other  laws  for  cases  unprovided  for.     It  is  to  be  regretted  that  full  scope  was  not  given 
to  the  talents  of  thisfgentleman  ;  the  humbler  exertions  of  those  now  employed  would  have 
then  been  rendered  unnecessary. 


THE   SYSTEM  OF  PENAL  LAW.  91 

On  these  parts  of  the  subject  then — and  they  form  three-fourths  of 
the  system — the  question  is  reduced  to  one  of  mere  form.  We  must 
have  detailed  laws.  Shall  they  be  framed  into  codes,  or  dispersed  in 
different  independent  statutes?  By  whatever  name  they  may  be 
called,  you  must  enact  rules  and  prescribe  forms;  you  must  provide 
laws  to  regulate  the  admission  and  weight  of  testimony,  and  a  plan  for 
the  government  of  your  prisons. 

The  advantages  of  having  these  reduced  to  order,  under  proper  heads, 
and  making  them  component  and  consistent  parts  of  the  same  system, 
are  so  obvious,  the  state  has  already  derived  so  much  benefit  from  a 
similar  improvement  in  the  civil  branch  of  its  jurisprudence,  that  it 
would  scarcely  seem  necessary  to  say  any  thing  on  this  subject;  but  as 
this  part  of  the  plan  has  not  escaped  censure,  it  may  be  proper  to  offer 
a  very  few  and  very  brief  remarks,  to  show  its  utility. 

Laws,  to  be  obeyed  and  administered,  must  be  known;  to  be  known 
they  must  be  read;  to  be  administered  they  must  be  studied  and  com- 
pared. To  know  them  is  the  right  of  the  people.  Their  administra- 
tion is  the  duty  of  the  magistrate.  But  that  mode  which  with  the  least 
trouble,  in  the  shortest  time,  and  at  the  least  expense,  brings  the  enjoy- 
ment of  this  right  and  the  performance  of  this  duty  within  the  reach 
of  those  to  whom  they  are  appropriated,  that  mode  is  the  best;  and 
were  two  systems  submitted  to  our  choice,  we  should,  for  the  purpose 
of  making  a  selection,  only  have  to  compare  them  and  determine  in 
what  degree  they  severally  were  calculated  to  produce  these  effects. 
But  here  the  question  is  not  which  of  two  systems  is  the  best;  but  whether 
it  is  better  to  have  a  system  or  none;  for  there  is  not,  in  our  present 
criminal  legislation,  the  least  appearance  of  plan  or  arrangement. 
Yet  if  this  character  deserves  the  epithet  which  is  given  by  the  poet, 
when  he  calls  it  emphatically  "  lucidus  ordo,"  how  can  we  expect  that 
the  necessary  light  will  be  shed  on  our  laws  without  it  ? 

A  representative  is  instructed  by  his  constituents,  or  led  by  his  own 
observation,  to  bring  in  a  bill  to  repress  a  prevailing  vice.  A  prepar- 
atory step  is  to  know  whether  it  has  already  attracted  legislative  notice. 
To  discover  this  he  must  examine  all  the  acts  concerning  crimes  and 
punishments,  for  the  titles  of  none  of  them  designate  the  particular 
offence  which  they  forbid.  He,  perhaps,  finds  a  provision  on  the  sub- 
ject, crowded  into  a  section(«)  with  others  to  which  it  bears  not  the 
least  relation.  But  has  it  not  been  repealed  or  modified  ?  Another  pain- 
ful search  in  which  he  discovers  a  second  lavv(6).  Is  it  consistent  with 
or  repugnant  to  the  first  ?  Another  question  which  he  has  not  the  time 
or  skill,  or  patience  to  resolve;  and  he  brings  in  a  third  bill  to  increase 
the  doubts  and  perplexities  of  his  successors. 

Is  the  task  easier  for  the  magistrate  ?     Called  on,  we  will  suppose,  to 

(a)  See  the  28th  and  31st  sections  of  the  act  of  4lh  May  1805.  In  the  first,  breach  of 
prison,  taking  a  reward  to  return  stolen  goods,  compounding  felony,  and  conspiracy  to  indict 
an  innocent  man,  are  confounded  together  in  a  clause  not  longer  than  this  note,  and  all  these 
offences  arc  subjected  to  (he  same  penalty.  In  the  socond,  rioters,  breakers  of  levees  and 
libellers,  are  most  heterogeneously  mixed. 

(I)  See  the  several  acts  concerning  forgery,  larceny,  burglary,  &c.  No  reference  is  made 
to  them  here  by  title  or  date,  that  the  readers  of  this  report  may,  in  the  search  for  them,  and 
in  the  task  of  reconciling  them  after  they  are  found,  have  a  small  specimen  of  the  difficulties 
mentioned  in  the  text. 


92  INTRODUCTORY  UEPOUT  TO 

perform  one  of  the  most  ordinary  functions  of  his  office,  in  which  he 
must  determine  whether  the  law  requires  him  to  deprive  a  fellow  citi- 
zen of  liberty;  whether  he  has  a  discretion  to  discharge  him  on  bail,  or 
whether  he  is  bailable  of  right.  He  first  consults  the  digest  of  our 
laws  up  to  the  year  1816,  and  in  it  he  searches  in  vain  for  such  a  title 
as  bail.  Under  that  of  justice  he  finds  something,  but  it  is  only  the 
beginning  of  his  labour.  He  is  there  told  that  if  the  offence  be  "not 
punishable  by  death,  or  not  exclusively  cognizable  by  the  superior 
court,"  that  he  must  take  bail;  and  afterwards  in  the  same  section,  that 
if  the  offence  be  punishable  by  death,  that  he  must  commit  the  ac- 
cused. But  what  is  to  be  done  with  him  if  the  crime  be  not  punishable 
in  that  manner,  yet  is  one  of  those  of  which  the  superior  court  had  ex- 
clusive cognizance,  is  not  said.  He  cannot  under  this  law  take  bail,  for 
it  is  a  case  excepted  by  the  first  clause.  He  cannot  commit;  for  the 
authority  is  not  given  by  the  second,  which  is  confined  to  the  two  cases 
of  crimes  punishable  by  death,  and  a  refusal  to  give  security.  First 
difficulty  for  the  magistrate.  He  happens  to  look  into  the  constitution, 
and  he  finds,  "  that  all  prisoners  shall  be  bailable  by  sufficient  securities 
unless  for  capital  offences  ;"  how  shall  he  reconcile  this  with  the 
law,  which  excludes  other  offences,  namely,  those  which  are  exclusively 
cognizable  by  the  superior  court  ?  Second  difficulty  for  the  magistrate. 
When  these  are  surmounted,  he  must  inquire  what  is  a  capital  offence, 
and  what  offences  are  exclusively  cognizable  by  the  superior  court  ? 
This  leads  to  an  examination  of  all  the  penal  statutes.  As  there  is  no 
classification,  no  order,  not  even  a  general  index,  he  must  examine  every 
law  and  every  section  of  every  law  ;  for,  as  we  have  seen,  our  statute 
offences  are  strangely  associated,  and  there  is  no  knowing  where  the 
provision  he  seeks  for  may  be  hid.  Third  difficulty  for  the  magistrate. 
But  we  will  suppose  him  a  persevering  intelligent  man,  and  that  this 
also  is  conquered.  He  has  another  not  less  stubborn  in  his  way.  If 
the  offence  in  question  is  one  of  those  enumerated  in  the  act  of  1805, 
he  has  to  look  to  the  common  law  of  England  for  its  definition,  for  the 
rules  of  evidence  which  he  is  to  take,  and  for  all  those  proceedings 
which  are  not  among  those  prescribed  in  the  act.  If  it  be  an  offence 
against  a  statute  of  a  subsequent  date,  he  has  no  rule,  and  neither  Burn, 
nor  Blackstone,  nor  Coke  himself,  can  tell  him  how  he  is  to  proceed. 

As  to  the  citizen  who  is  neither  representative  nor  magistrate,  I  need 
not  enumerate  the  difficulties  that  stand  in  his  way,  for  he  never  at- 
tempts their  encounter;  and  it  is  no  bold  assertion  to  say,  that  not  one 
in  an  hundred,  even  in  the  educated  part  of  the  community,  can,  in  the 
nature  of  things,  have  even  a  superficial  knowledge  of  the  criminal  laws 
by  which  he  is  governed,  and  which  he  is  expected  to  obey. 

All  these  and  a  thousand  other  evils  might  be  avoided  by  a  simple 
arrangement  of  the  penal  law  under  its  different  heads,  and  in  short  sen- 
tences; where  every  thing  required  to  be  known  might  be  found  in  its 
place,  and  might  be  understood  when  it  was  found;  where  the  eye  of  the 
legislator(a)  might,  at  one  comprehensive  glance,  discover,  from  what 
was  done,  what  ought  to  be  supplied,  corrected  or  restricted;  where 
magistrates  could  find  simple  directions  for  the  performance  of  their 

(a)  "  The  enacting  of  penalties  to  which  a  whole  nation  shall  be  subject,  ought  to  be  calmly 
and  maturely  considered,  by  persons  who  know  what  provisions  the  laws  have  already  made 
to  remedy  (he  mischief  complained  of." — JBl.  Com. 


THE  SYSTEM  OF  PENAL  LAW.  93 

duty;  judges,  in  the  precise  language  of  the  law,  see  the  limits  and  ex- 
tent of  their  discretionary  powers;  jurors  learn  how  they  are  to  act,  so 
as  neither  to  abuse  nor  surrender  their  important  privileges;  citizens 
how  to  defend  their  own  rights  and  protect  those  of  others;  and  the  whole 
community  acquire  the  knowledge  of  that  which  all  may  at  some(a) 
time  or  other  have  so  high  an  interest  in  knowing. 

The  consideration  of  expense,  too,  though  of  less  importance  than  the 
others  which  have  been  urged,  is  not  without  its  consequence.  Every 
session  of  the  legislature  produces  from  sixty  to  an  hundred  laws  ; 
three-fourths  of  them  private  acts  ;  and  one  or  two  on  an  average  which 
have  some  bearing  on  the  penal  law.  But  they  are  all  published  in  the 
same  volume  ;  so  that  whoever  wishes  to  possess  the  statutes  on  that 
subject  must  go  to  the  expense  of  a  whole  set  of  the  laws,  and  think 
himself  fortunate  if  he  can  procure  them,  for  the  greater  part  are  now 
out  of  print  ;  and  should  duty  or  inclination  induce  him  to  wish  for  a 
more  perfect  and  not  less  necessary  knowledge  of  this  branch  of  our 
laws,  he  must  procure  a  common  law  library  at  an  indefinite  expense. 
All  this  could  be  avoided  by  the  adoption  of  a  system  in  which,  without 
trouble  and  at  a  small  expense  of  time  or  money,  the  whole  penal  law 
would  be  placed  within  the  reach  of  all. 

No  one  can  be  blind  to  the  incalculable  advantages  our  state  has  de- 
rived from  its  civil  code.  Yet  that,  code  is  imperfect  and  must  necessa- 
rily be  so.  The  endless  variety  and  ever  changing  nature  of  contracts 
and  other  civil  relations  must  always  make  it  as  difficult  to  frame,  as  it 
must  be  incomplete,  after  the  utmost  care  in  its  construction.  But  a 
penal  code  is  susceptible  of  a  nearer  approach  to  perfection.  Nothing 
being  an  offence  but  doing  that  which  is  forbidden,  or  omitting  to  do  that 
which  is  enjoined  by  the  law.  It  follows  that  as  the  law  can  only  enjoin 
or  forbid  by  the  use  of  language,  there  can  of  necessity  be  nothing  penal, 
but  that  which  is  not  only  foreseen,  but  expressed  by  the  legislature;  in 
other  words,  that  which  is  contrary  to  written  law  ;  and  whenever  an 
act  is  not  thus  forbidden  or  enjoined,  there  can  be  no  punishment  for  do- 
ing or  for  omitting  it.  If,  therefore,  the  greater  difficulties  of  framing  a 
civil  code  have  been  surmounted  so  far  as  to  render  it  an  acknowledged 
blessing  to  the  country,  why  should  objections  be  raised  to  the  easier 
operation  of  making  a  written  system  of  penal  law  ? 

Other  general  objections,  which  apply  to  any  written  code  that  could 
be  proposed,  have  been  urged,  and  must  be  answered  before  we  consider 
the  particular  provisions  of  the  system  now  offered.  They  are, 

(a)  The  observations  of  Blackstone,  repeating  and  enlarging  on  what  was  so  happily  ex- 
pressed by  sir  M.  Foster,  although  frequently  quoted,  cannot  be  too  often  repeated  for  the 
use  of  all  legislators,  who  too  readily  imagining  themselves  and  their  connexions  beyond 
the  reach  of  any  operation  of  the  criminal  laws,  pay  little  attention  to  the  evils  which  they 
may  produce  to  the  community  at  large.  "  The  knowledge  of  this  branch  of  jurisprudence," 
says  this  celebrated  commentator,  "  which  teaches  the  nature,  extent  and  degrees  of  every 
crime,  and  adjusts  to  it  its  adequate  and  necessary  penalty,  is  of  the  utmost  importance  to 
every  individual  in  the  state;  for  no  rank  or  elvation  in  life,  no  uprightness  of  heart,  no  pru- 
dence or  circumspection  of  conduct  should  tempt  a  man  to  conclude  that  he  may  not  at  some 
time  or  other  be  deeply  interested  in  these  researches.  The  infirmities  of  the  best  among 
us,  the  vices  and  ungovernable  passions  of  others,  the  instability  of  all  human  affairs,  and  the 
numberless  unforseen  events,  which  the  compass  of  a  day  may  bring  forth,  will  teach  us, 
upon  a  moment's  reflection,  that  to  know  with  precision  what  the  laws  of  our  country  have 
forbidden,  and  the  deplorable  consequences  to  which  a  wilful  disobedience  may  expose  us, 
is  a  matter  df  universal  concern."  4.  SI.  Com.  p.  2. 


94  INTRODUCTORY  REPORT  TO 

First,  that  it  is  an  innovation,  and  therefore  to  be  avoided. 

Second,  that  we  suffer  no  inconvenience  from  the  present  state  of  our 
law. 

Third,  that  it  will  require  much  time  and  trouble  to  become  ac- 
quainted with  a  new  system. 

Fourth,  that  it  may  be  good  in  theory  but  bad  in  practice. 

Fifth,  that  the  terms  of  the  new  code  will  require  to  be  explained  by 
judicial  decisions  and  commentaries,  which  will  produce  the  same  or 
a  greater  accumulation  of  authorities  than  are  now  complained  of  in  the 
common  law. 

1.  The  hacknied  objection  against  improvements  that  they  are  new, 
amounts  to  no  more  than  that  they  are  improvements  ;  and  the  fallacy 
has  been  so  often  exposed  that  the  perseverance  of  those  who  still  use 
it  is  truly  wonderful,  and  would  deserve  our  admiration  in  a  better 
cause.  Their  objections  hold  the  very  reverse  of  the  wise  king  of  Is- 
rael's doctrine,  that  there  is  nothing  new  under  the  sun.  With  them 
every  thing  is  new,  and  they  use  the  epithet  as  synonymous  with  bad 
or  at  least  with  dangerous.  But  the  truth  is,  that  with  us  a  body  of 
written,  to  the  exclusion  of  traditionary  laws,  is  no  innovation.  We 
had  them  before  the  cession,  and  our  first  care  afterwards  was  to  provide 
them,  better  suited  to  our  circumstances  in  civil  cases.  An  experiment 
in  any  of  the  occult  sciences  is  said  to  be  most  successfully  made,  when 
the  desired  efiectshave  been  produced,  under  the  most  unfavourable  cir- 
cumstances. It  is  the  same  in  legislation,  and  we  may  consider  the 
favourable  result  as  completely  ascertained  ;  for  our  experiment  has 
been  thus  made.  It  has  succeeded  in  the  most  difficult  branch ;  succeeded 
under  every  disadvantage  of  imperfect  execution,  and  in  opposition  to 
professional  and  national  prejudices;  succeeded,  too,  so  completely,  as  to 
silence  every  objection  to  the  measure  itself,  and  leaving  none  but  to  some 
of  the  details  which  more  mature  revision  may  remove.  This  then  is  no 
further  an  innovation,  than  as  it  applies  the  same  remedy  that  has  suc- 
ceeded in  the  complex  case  of  the  civil,  to  the  simpler  one  of  the  crim- 
inal department.  It  is,  on  the  contrary,  the  removal  of  one  which  was 
formerly  made — the  mischievous  and  dangerous  reference  to  a  foreign 
and  unwritten  code  ;  and  indeed  there  can  be  no  change  which  does  not 
destroy  something  that  was  itself,  when  first  introduced,  an  innovation. 

The  truth  is,  that  by  repeating  a  word  or  a  phrase  very  frequently, 
and  using  it  always  in  a  bad  sense,  an  indefinite  idea  of  evil  gets  attached 
to  it,  which  makes  it  a  very  convenient  instrument  in  the  hands  of 
those  who  are  at  a  loss  for  more  legitimate  weapons  in  argument.  This  is 
the  case  with  the  word  in  question  ;  and  many  excellent  measures  have 
been  defeated  merely  by  repeating  it,  accompanied  by  some  gesture 
of  disapprobation,  and  reinforced  sometimes  by  the  sage  observa- 
tion of  "  good  in  theory  but  bad  in  practice,"  a  phrase  of  equal 
import,  which  we  shall  presently  analyse.  In  the  mean  time  It 
is  put  to  the  recollection  of  every  member  of  the  honourable  body  to 
whom  this  report  is  addressed,  whether  these  precise  words  have 
not  frequently  been  used  as  objections  to  the  measure  now  proposed  ? 

If  the  objection  were,  that  it  is  a  bad  or  a  dangerous  innovation,  its 
merits  would  immediately  come  under  discussion;  and  this  ought  to  be 
the  object  of  every  one  who  proposes  a  change.  Of  this  he  would  have 
no  right  to  complain,  and  the  question  ought  to  be  so  stated  as  to  throw 
upon  him  the  burthen  of  showing  the  expediency  and  practicability  of 


THE    SYSTEM  OF  PENAL  LAW.  95 

the  measure  he  advocates  ;  for  there  is  no  doubt  that  every  change  of 
laws,  or  the  manner  of  administering  them,  must  be  attended  with  some 
inconvenience,  and  is  therefore  to  be  avoided.  And  he  is  justly  to  be 
reproached  as  an  idle  or  mischievous  pretender,  who  proposes  any 
change  without  being  able  to  show,  not  only  that  it  would  be  useful  if 
adopted,  but  that  it  is  practicable,  and  that  its  advantages  will  more  than 
compensate  the  evils  of  the  operation.  But  he  has  a  right  to  expect  that 
a  good  and  necessary  measure  will  not  be  rejected  on  the  vague  charge 
of  innovation',  which,  being  strictly  true  as  applied  to  every  Change,  can- 
not be  denied,  and  is  hurtful  only  from  the  improper  meaning  affixed  to 
the  term(«). 

2.  The  next  general  objection  is,  that  there  is  no  necessity  for  a  change; 
thepeaceof  the  state  is  as  well  preserved  as  that  of  any  other  in  the  union; 
crimes  are  not  more  frequent  ;  justice  is  well  administered  ;  and  if  any 
evils  should  result  from  our  present  system,  it  will  be  time  enough  to 
correct  them  when  they  arise.  How  much  of  truth  there  is  in  the  al- 
legations by  which  this  objection  is  supported,  may  be  determined  by 
referring  to  a  former  part  of  this  report,  in  which  the  present  state  of 
our  criminal  jurisprudence  is  detailed.  No  comparison  can  with  justice 
be  made,  between  the  situation  of  other  states  in  this  respect  and  ours. 
With  them  the  common  law  is  indigenous  ;  they  have  grown  up  under 
it  and  modified  it  to  their  wants  and  conveniences.  They  have  not  the 
embarrassment  arising  from  the  laws  of  foreign  countries  unrepealed 
among  them.  Their  people  speak  all  the  same  language  and  are  familiar 
with  all  the  technicalities  of  the  law.  Yet  without  these  pressing  induce- 
ments, many  of  them  have  reduced  their  criminal  code  into  something  like 
system.  A  large  majority  of  them  have 'adopted  the  penitentiary  plan, 
and  have  given  their  laws  the  shape  it  requires  ;  and  the  legislature  of 
one  of  the  largest  and  most  influential  among  them  is  now  oc- 
cupied with  the  revisal  of  all  their  laws,  including  the  criminal  code,  and 
throwing  them  into  a  methodical  form.  But  whatever  be  the  compar- 
ative situation  of  ours  with  other  states,  as  to  the  condition  of  their  penal 
laws,  we  know  that  ours  are  extremely  defective  ;  and  although  the 
body  politic  can  move  on  in  spite  of  these  defects  ;  although  anarchy 
does  not  reign,  and  the  laws,  bad  as  they  are,  curb  offences  in  some  de- 
gree, we  should  scarcely  be  justified  to  ourselves,  to  our  country,  or  to 
our  God,  for  neglecting  the  means  in  our  power  to  remedy  the  existing 
and  prevent  the  future  mischief  of  a  system,  so  extremely  defective  as 
our  own.  The  suggestion  that  all  must  be  right,  because  we  do  not  see 
and  feel  the  evil  in  our  own  persons,  creates  a  fallacious  security,  and,  it 
may  be,  a  fatal  one.  If  it  were  true  that  no  evil  has  yet  arisen  from  the 
effects  of  a  system  which  we  see  must  eventually  produce  it,  we  should 

(a)  The  man  who  has  thrown  more  light  on  the  science  of  legislation,  than  any  other  in 
ancient  or  modern  times,  speaking  of  this  kind  of  objection  says,  "  a  few  words  then  are 
necessary  to  strip  the  mask  from  this  fallacy  :  no  specific  mischief,  as  likely  to  result  from 
the  specific  measure,  is  alleged ;  if  it  were,  the  argument  would  not  belong  to  this  head. 
What  is  alleged  is  nothing  more  than  that  mischief,  without  regard  to  the  amount,  would 
be  among  the  results  of  this  measure.  But  this  is  no  more  than  can  be  said  of  every  legis- 
lative measure  that  ever  did  or  ever  can  pass.  If  then  it  be  to  be  ranked  with  arguments, 
it  is  an  argument  that  involves,  in  one  common  condemnation,  all  political  measures  whatso- 
ever, past,  present  and  to  come;  it  passes  condemnation  on  whatsoever  in  this  way  ever  has 
been  or  ever  can  be  done,  in  all  places  as  well  as  all  times." — Sentham's  Book  of  Fallacies. 


96  INTRODUCTORY  REPORT  TO 

bless  God,  and  hasten,  before  it  is  too  late,  to  prevent  those  ills  which 
•we  cannot  compensate  after  they  have  been  suffered.  To  defer  it,  is  as 
wise  as  to  wait  until  some  traveller  has  been  lost  in  the  torrent  that 
crosses  the  way,  before  we  build  a  bridge  to  pass  it. 

But  is  it  true  that  no  evil  is  already  felt  ?  Is  it  only  to  prevent  future, 
not  to  remove  present  mischief  that  we  are  called  on  to  legislate  ?  To 
answer  these  questions  we  must  look  to  the  general  operation  of  our 
laws  on  the  character  and  morals  of  the  whole  community  as  well 
as  to  their  particular  application.  Nothing  in  a  free  government  can 
be  a  worse  symptom,  than  an  indifference  to  bad  laws,  because  we  do  not 
suffer  by  their  immediate  operation.  In  the  people,  it  evinces  a  selfish 
feeling;,  a  carelessness  of  the  welfare  of  others,  and  an  insensibility 
to  public  good,  destructive  of  every  patriotic  sentiment.  This  danger- 
ous apathy  is  created  and  fostered  by  suffering  the  existence  of  impoli- 
tic or  oppressive  laws,  although  circumstances  may  not  have  called  for 
their  application.  We  become  familiar  with  them  and  learn  to  consider 
as  innocent  that  from  which  we  feel  no  present  inconvenience  ;  and, 
presently,  as  necessary  that  which  has  so  long  continued  ;  and  when  in 
evil  times  these  instruments,  ready  fashioned  for  the  hand  of  oppression, 
are  brought  into  operation,  it  is  illegal  to  resist,  and  we  know  not  how 
to  avoid  the  stroke.  But  in  a  community  such  as  ours,  there  will  al- 
ways be  a  large  proportion  who  have  understanding  enough  to  see  and 
fear  the  danger.  To  those  this  apprehension  is  a  continued  evil,  at- 
tended with  the  humiliating  sensation  of  having  life,  liberty,  reputation, 
or  property  at  the  disposition  of  another(a),  which  must  always  be  more 
or  less  the  case  under  any  but  a  good  system  of  penal  laws.  There  is, 
then,  evil,  positive  evil,  the  evil  of  political  degradation  or  constant 
apprehension,  even  though  the  laws  should  never  be  executed.  But  that 
is  not  the  case  ;  they  have  a  general,  active  and  most  pernicious  opera- 
tion; one  that  never  for  a  moment  ceases,  and  for  the  continuance  of 
which  every  legislature  that  meets  incurs  a  most  awful  responsibility. 
The  only  punishments,  with  the  exception  of  death(d),  now  inflicted, 
are  fine  and  imprisonment.  To  some  crimes  the  law  adds  hard  labour; 
but  as  no  means  are  provided  for  inflicting  this  punishment,  the  only 
confinement  that  is  suffered  is  one  of  idleness,  debauchery  and  vicious 
association.  Of  all  punishments  this  is  the  most  unequal  and  most  in- 
jurious to  society  and  to  the  individual.  As  this  subject  will  be  fully 
discussed  in  the  preliminary  report  on  the  Code  of  Prison  Discipline, 

(a)  In  some  memoir  of  the  reign  of  Louis  XV.  we  read  of  a  courtier  whose  duties  called 
him  very  frequently  about  the  person  of  the  monarch  with  whom  he  was  a  kind  of  favour- 
ite ;  but  far  from  enjoying  this  distinction  with  pleasure,  he  was  observed  always  to  be  ex- 
tremely agitated  in  the  royal  presence.  On  being  asked  by  a  friend  to  account  for  this 
feeling,  he  said,  "  I  have  indeed  every  reason  to  be  satisfied  with  my  treatment ;  but 
whenever  I  am  in  company  with  the  king,  I  cannot  avoid  saying  to  myself,  there  stands  a 
man  who  whenever  he  pleases  may  chop  off  my  head  or  bury  me  alive  in  the  Bastile. 
Judge  whether  with  these  reflections  I  can  be  happy."  The  existence  of  bad  laws  must 
have  the  same[effect"upon  every  considerate  citizen,  that  the  presence  of  his  master  produced 
on  the  disturbed  faculties  of  the  courtier.  The  sword,  though  it  never  fell,  destroyed  the 
festivity  of  Damocles. 

(I)  Whipping  maintains,  as  we  have  seen,  an  existence  of  doubtful  authority  on  the  stat- 
ute-book, and  the  pillory  is  prescribed  as  a  specific  against  the  disorder  of  one  offence  only; 
neither,  however,  have,  1  believe,  been  administered  of  late  years. 


THE  SYSTEM  OF  PENAL  LAW.  97 

it  is  not  now  intended  to  enter  into  the  reasons  which  conclusively 
show,  that  the  laws  which  permit  or  direct  the  indiscriminate  associa- 
tion of  the  innocent  with  the  guilty,  before  trial,  and  of  those  affected 
with  different  degrees  of  guilt,  after  condemnation,  are  themselves  the 
great  causes  of  the  depravity  which  they  profess  to  punish.  Such  laws 
are  ours  ;  such  are  and  always  will  he  their  effects  ;  and  you,  legisla- 
tors !  you  have  collectively  the  power  to  remove  this  evil,  to  repeal 
these  laws,  to  replace  them  by  those  which  are  better — worse,  you  can 
scarcely  substitute.  Each  of  you,  individually,  may  cast  off  the  respon- 
sibility of  their  continuance,  by  an  earnest,  sincere  resolve  to  adopt  what 
is  good  and  amend  what  is  erroneous  in  the  system  that  is  proposed;  and 
by  rejecting  with  disdain  the  false,  and  fallacious,  and  dangerous  lullaby 
that  is  sung  to  your  consciences,  that  all  is  well.  All  is  not  well  !  The 
general  operation  of  your  laws  destroys  the  morals  of  the  people,  saps 
the  foundation  of  your  liberty,  and  is  calculated  to  spread  general  alarm. 
By  their  particular  operation,  they  endanger  the  safety  of  the  innocent 
and  favour  the  escape  of  the  guilty.  These  last  characteristics  will  be 
made  more  apparent  in  considering  the  particular  provisions  of  the  dif- 
ferent codes,  more  especially  that  of  procedure.  Here  it  will  be  suffi- 
cient to  indicate,  that  the  severity  of  some  of  your  penalties,  dispropor- 
tioned  to  the  offence,  and  repugnant  to  the  feelings  of  the  people,  always 
have  and  always  will  induce  witnesses  to  avoid  prosecuting,  jurors  to 
acquit  against  evidence,  judges  to  recommend  to  undeserved  clemency, 
and  the  pardoning  power  to  be  indiscreetly  exercised  :  that  the  law 
which  has  been  prescribed  for  criminal  proceedings,  in  certain  cases,  by 
legislative  authority,  and  adopted  without  any  authority  at  all,  in 
others,  is  eminently  calculated  for  the  escape  of  the  guilty,  by  the  nu- 
merous objections  which  it  admits  to  the  forms  of  proceedings  :  that  if 
instances  are  not  produced  to  you  of  individuals  suffering  innocently, 
you  are  not,  from  thence,  to  conclude  that  such  cases  do  not  exist;  for 
no  act  being  guilt,  but  one  that  is  intended  to  be  forbidden  by  the  law, 
whenever  that  is  so  ambiguous,  or  its  definition  so  loose,  as  to  render  it 
doubtful  whether  one  act  or  another  comes  within  its  intent,  the  chances, 
— why  is  it  necessary  to  use  this  term  in  speaking  of  that  which  ought  to 
exhibit  moral  certainty  ? — the  chances  of  a  decision  in  accordance  with, 
or  contrary  to  the  meaning  of  the  legislator,  are  equal,  and  of  course  it 
is  as  probable  that  the  penalty  may  fall  on  the  head  of  the  innocent,  as 
of  the  guilty(a) :  and,  finally,  that  the  innocent  are  made  guilty,  and  the 
guilty  become  more  depraved,  and  both  suffer  incalculable  moral  and 
physical  evil  by  their  indiscriminate(6)  confinement. 

(a)  The  organization  of  our  criminal  courts  gives  a  good  reason  why  instances  of  errone- 
ous decisions  cannot  be  produced.  There  is  no  legal  mode  of  examining  them — no  review  ! 
— no  appeal !  Eight  independent  judges,  each  gives  his  own  construction  on  a  mass  of  laws, 
the  most  liable  to  misconstruction,  without  any  means  of  comparing  or  reconciling  them. 
The  reporter  has  not  ventured  to  propose  in  this  system  a  remedy  for  this  most  flagrant  evil. 
He  once  proposed  it,  and  the  bill  is  on  the  legislative  files.  The  double  influence  that 
defeated  it,  is  still  in  force.  It  exists  in  human  nature.  Few  men  like  to  have  their  errors 
exposed,  and  as  few  like  the  trouble  of  correcting  those  of  others,  without  additional  com- 
pensation. 

(6)  This  is  not  a  repetition,  although  the  enormity  of  the  evil  would  excuse  its  being 
brought  frequently  to  notice.  When  formerly  mentioned,  it  was  to  show  its  general  de- 
moralizing effects  on  the  whole  community.  Here  it  is  enumerated  as  one  of  the  causes  of 
individual  suffering. 

N 


98  INTRODUCTORY  REPORT  TO 

3.  But  we  are  also  told,  that  the  introduction  of  a  new  system  will  be 
attended  with  trouble  and  expense  :  trouble  to  learn  its  provisions  ; 
expense  to  carry  it  into  effect.  Of  this  there  is  not  the  least  doubt.  All 
laws  that  ever  were  or  ever  will  be  made  are  liable  to  this  objection. 
But  whatever  trouble  they  give  in  learning  them,  or  whatever  sum  they 
cost  in  making,  we  must  have  laws  ;  and  if  we  are  wise,  we  must  have 
good  laws.  If  those  which  now  govern  us  are  good,  he  would  be  mad, 
or  worse,  who  should  propose  to  change  them.  The  first  question,  then, 
is  one  that  has  already  been  discussed,  are  our  present  penal  laws  good  or 
bad  ?  Their  defects  have  been  shown.  No  man  who  has  considered 
the  subject,  can  call  ours  a  good  system.  But  as  good  and  bad  are  rela- 
tive terms,  the  present  laws  not  being  perfectly  bad,  nor  any  that  can  be 
offered  to  replace  them  perfectly  good,  our  inquiry  is  reduced  to  one  of 
expediency.  We  must  compare  the  present  state  of  things,  its  advantages 
and  evils,  with  those  of  the  system  that  is  proposed,  and  as  the  scale 
preponderates  decide  to  remain  as  we  are,  or  to  adopt  this  or  some 
other  code  in  its  stead.  The  materials  for  forming  the  first  part  of  this 
judgment  are  already  before  you.  The  evils  of  our  present  laws  have 
been  exhibited  ;  and  if  the  advantages  have  not  been  displayed  with 
equal  care,  it  is  because  all  that  has  been  thought  good  in  the  excellent 
materials  which  are  found  in  its  composition,  have  been  used  in  the 
construction  of  the  new  system  that  is  offered  to  replace  it.  Another 
part  of  the  operation,  the  consideration  of  the  advantages  and  defects 
of  the  new  system,  must  necessarily  be  deferred  until  we  enter  on  the 
detail  of  its  provisions. 

To  dispose  of  the  present  objection,  we  will,  first,  consider  the  evils 
attendant  on  every  change  that  may  be  proposed,  and  compare  them 
with  those  which  we  now  suffer,  or  must  expect  as  inevitable,  from  a 
continuance  in  our  present  state. 

First,  the  prominent  objection  of  the  trouble  and  inconvenience  of 
learning  a  new  system.  To  give  any  weight  whatever  to  this  reason, 
we  must  suppose  a  state  of  things  which  does  not  exist;  we  must  sup- 
pose that  the  present  laws  are  known — known  to  those  who  are  to  obey, 
as  well  as  to  those  who  administer  them;  because,  in  all  evils  in  govern- 
ment, it  is  amongst  the  greatest,  that  the  laws,  particularly  the  penal 
laws,  should  be  a  mystery  to  the  people,  and  the  knowledge  of  them 
confined  to  certain  designated  classes  or  descriptions  of  men.  They 
invariably  make  a  property  of  them  in  the  strictest  sense  of  the  word; 
a  property  that  must  be  paid  for,  whenever  it  is  wanted  for  use;  and, 
like  other  articles  of  commerce,  is  not  always  sold  in  a  pure  unsophis- 
ticated state;  and  the  unfortunate  purchaser  of  the  adulterated  commodity, 
has  no  means  of  determining  whether  it  be  good  or  bad,  until  he  has  in- 
curred some  loss,  or  made  himself  liable  to  some  penalty  by  trusting 
to  it.  And,  to  carry  on  the  metaphor,  the  seller  himself  may  have  been 
equally  deceived  in  them,  for  a  written  code  is  the  only  public  inspec- 
tion office  at  which  the  stamp  of  authority  is  given  to  legal  opinions, 
and  by  a  reference  to  which,  their  correctness  may  be  tested.  But  it 
has  been  shown — it  is  believed  to  demonstration — that  with  a  very 
considerable  portion  of  its  penal  laws,  three-fourths  of  the  people  of  this 
state  cannot,  in  the  nature  of  things,  be  acquainted ;  that  the  other  fourth 
can  know  it  but  partially;  and  to  any  one  who  has  attended  our  courts, 
it  must  be  evident,  from  the  number  of  contradictory  cases  and  authori- 


THE  SYSTEM  OF  PENAL  LAW.  99 

ties  cited,  sometimes  on  the  simplest  points(#),  that  even  those  who 
have  made  it  the  study  of  their  lives  to  expound  these  laws,  and  those 
whose  duty  it  is  to  apply  them,  are  not  yet  masters  of  their  provisions. 
Each  advocate  relies  on  his  own  authority,  and  the  judge,  perhaps,  de- 
cides according  to  a  third. 

The  present  law,  then,  is  wholly  unknown  in  some  of  its  essential 
parts  to  a  large  majority  of  the  people,  because  those  parts  are  either  not 
written  at  all,  or  written  in  a  language  that  is  not  understood;  and,  to 
say  no  more,  it  is  not  perfectly  known  to  those  who  are  paid  (6)  to  explain 
and  administer  it.  Here  the  proposed  system  has  a  decided  advantage; 
for  it  retains  almost  all  that  is  now  known,  and  renders  that  accessible 
which  could  not  be  approached  before.  It  can  be  read  in  the  language 
of  the  reader.  It  can  be  read  in  one  book,  without  being  obliged  to  have 
recourse  to  a  hundred.  Its  terms  are  simple  and  intelligible,  or  are  made  so 
by  explanation.  It  is  methodized,  and  the  part  that  is  required,  may  be 
found  without  trouble.  If  it  is  adopted,  the  law  no  longer  is  a  snare  for  the 

(a)  For  proof  of  this  assertion,  if  any  be  wanted,  open  at  random  any  report  of  a  criminal 
trial  at  common  law.  In  the  case  already  referred  to,  of  the  Territory  v.  Barran,  fourteen 
cases  were  arrayed  on  the  one  side,  'and  were  met  by  an  equal  force  of  fourteen  on  the  other; 
each  of  them  equally  law,  because  each  was  pronounced  by  sir  William  Blackstone's  living 
oracles  ;  and  yet  fourteen  of  them  must  have  been  false,  if  the  other  fourteen  were  true. 

In  another  case,  the  offence  was,  in  the  indictment,  statedjo  have  been  committed  "  in 
the  city  of  New  Orleans,"  which  we  all  know  to  be  in  the  First  District ;  and  lest  that  might 
be  forgotten,  the  words  "  First  District"  were  put  in  the  margin.  A  conviction  took  place 
on  this  indictment ;  but  a  motion  was  made  to  arrest  this  judgment,  because  the  words  "  in 
the.  district  aforesaid,"  were  not  inserted  after  the  words  "  New  Orleans."  Twenty  au- 
thorities, equally  conclusive,  were  cited  on  this  important  question.  And  it  was  decided, 
that  the  words  were  necessary ;  and  the  defendant,  although  found  guilty,  escaped  punish- 
ment. Will  this  decision  be  a  rule  in  future  cases  ?  To  use  a  favourite  phrase  to  express 
judicial  legislation,  does  it  settle  the  law  ?  The  general  assembly  may  judge  from  the  follow- 
ing statement: 

In  the  case  of  the  Seven  Bishops,  three  judges  decided  that  surety  of  the  peace  might  be 
required  in  a  case  of  a  libel.  One  judge  dissented. — In  the  case  of  John  Wilkes,  Lord 
Camden,  in  declaring  the  opinion  of  the  court,  according  to  the  report,  says,  that  the  dis- 
senting judge  (Powell)  was  the  only  honest  man  of  the  four,  and  subscribes  to  his  opinion, 
declaring  that  "  it  is  absurd  to  require  surety  of  the  peace  or  bail  in  the  case  of  a  libellous 
suit." 

ID  the  case  of  Nugent,  the  superior  court  of  the  territory  of  Orleans,  decided  contrary  to 
the  opinion  of  the  couit,  as  declared  by  lord  Camden,  and  required  the  defendant  to  give 
security  for  his  good  behaviour.  What  has  been  decided  in  the  eight  several  independent 
courts  of  criminal  jurisdiction,  since  that  time,  I  cannot  say.  What  sides  they  have  taken 
between  lord  Camden  and  judge  Martin,  I  cannot  pretend  to  know.  But  I  ought  to  add, 
that  one  reason  alleged  for  not  subscribing  to  the  opinion  of  his  lordship,  was,  that  it  was 
believed  to  be  inaccurately  reported,  thereby  adding  the  high  authority  of  our  own  judiciary, 
to  the  support  of  what  I  have  said,  as  to  this  source  of  uncertainty  in  the  English  law — an 
uncertainty  not  theoretically  feared,  but  practically  felt  in  forming  the  decision  just  quoted. 

(6)  Any  reflection  derogatory  to  the  learning,  ability,  or  integrity  of  the  respectable  judges 
and  other  magistrates,  who  administer  our  criminal  law,  would  be  so  unbecoming,  not  to  say 
unjust  and  disrespectful,  that  it  is  hoped  nothing  of  this  kind  will  be  understood  by  the  re- 
port, or  imputed  to  its  author.  What  is  meant  by  this,  and  similar  observations  in  this  work, 
is,  that  the  laws  themselves  are  in  such  a  state,  composed  of  such  heterogeneous  materials, 
drawn  from  such  obscure  sources,  and  so  confusedly  put  together,  that  it  is  impossible  for 
the  most  assiduous  application  and  the  quickest  apprehension  to  master  them. 


100  INTRODUCTORY  REPORT  TO 

unwary;  all  its  penalties  are  exposed;  whoever  incurs  them  must  do  it 
wilfully;  the  good  citizen  clothes  himself  in  their  protection,  for  they 
teach  him  all  his  rights  and  all  his  duties;  the  knave  knows  and  fears 
them,  for  he  sees  that  they  cannot  be  evaded  nor  broken  with  impunity; 
the  diligent  may  easily  acquire  a  knowledge  of  all  their  contents;  the 
more  negligent  knows  where  the  provisions  that  suit  his  immediate  oc- 
casions are  to  be  found,  when  they  may  be  wanted,  and  no  one  will 
have  occasion  to  pay  another  for  expounding  laws,  which,  being  intended 
for  general  use,  are  suited  to  the  capacities  of  all.  These  will  be  the 
effects  of  a  good  system.  Nearly  the  reverse  is  experienced  under  the 
present.  And  I  think  it  may  safely  be  asserted,  that  less  time  will  be 
required  to  obtain  a  perfect  knowledge  of  any  law  that  is  reduced  to 
writing,  and  framed  with  a  tolerable  attention  to  clearness  and  method, 
than  would  be  necessary  to  learn  that,  part  of  those  which  now  govern 
us,  which  is  unknown  even  to  its  professors.  But  should  it  be  con- 
ceded that  this  supposition  is  unfounded,  and  that  greater  trouble  would 
be  required  than  is  supposed,  to  master  the  differences  between'theold 
and  the  new  system,  for  those  who  have  studied  the  former,  yet  this  can 
apply  only  to  ourselves,  to  those  who  are  now  on  the  stage  of  public 
life.  But  those  who  are  just  about  to  take  their  places  there;  the  count- 
less succession  of  legislators,  judges,  advocates,  magistrates  and  officers, 
who  are  to  replace  them! — the  multitude  even  in  the  present  day,  who 
have  not  yet  studied  the  present  laws,  but  who  are  bound  to  obey  them! 
— the  millions  who  are  to  follow  them  in  the  lapse  of  those  ages  which 
every  good  citizen  must  wish  his  country  and  its  institutions  to  endure! 
— is  the  curse  of  bad  laws,  and  the  odious  and  painful  task  of  learning 
them,  to  be  entailed  on  these  for  ever,  to  save  ourselves  the  task  of  a 
few  days  or  weeks  mental  application  ?  But  this  inconvenience,  what- 
ever be  its  amount,  cannot  be  avoided.  The  new  system  must  be 
studied.  It  cannot  be  rejected  without  examining  and  weighing  its 
provisions;  and  if  in  performing  this  duty,  those  who  study  it  to  find 
out  defects  and  objections,  would  give  but  half  the  care  in  amending 
what  is  wrong,  or  pointing  out  and  advocating  what  is  right,  we  should 
hear  no  more  of  their  objections  to  adopting  it.  This  argument  is 
addressed  to  enlightened  legislators,  who  know  that  their  labours  are 
not  to  be  confined  to  the  ephemeral  operation  of  the  present  day.  To 
those  upright  magistrates  who  are  ever  ready  to  sacrifice  their  personal 
convenience  to  the  permanent  good  of  their  country;  to  the  high-minded 
members  of  an  honourable  profession,  who  cannot  but  see  the  uncer- 
tainties and  incongruities  of  our  present  laws,  and  who  would  scorn  to 
make  public  evil  contribute  to  their  private  good  :  these  classes  com- 
prise generally  all  who,  having  any  knowledge  of  the  system  now  in 
force,  would  find  some  little  part  of  that  knowledge  useless  by  the  in- 
troduction of  a  new  one  ;  and  to  either  of  these  it  would  be  insulting 
to  express  a  doubt  of  their  readiness  to  devote  the  time  necessary  for 
this  new  study  ;  or  that  they  would  for  a  moment  put  in  competition 
a  trifling  and  temporary  personal  inconvenience,  with  a  lasting  and  im- 
portant benefit  to  their  country.  It  must  be  observed,  that  I  am  now 
answering  the  objection  of  trouble  and  inconvenience  only,  as  applicable 
to  any  change;  and  that,  therefore,  it  is  permitted  to  consider  the  change 
as  an  advantageous  one;  for  it  will  most  readily  be  conceded,  that  neither 
trouble  nor  expense  ought  to  be  incurred,  for  replacing  a  bad  system  by 
one  that  is  not  better. 


THE  SYSTEM  OF  PENAL  LAW.  101 

The  arguments  on  this  head  have  hitherto  been  based  on  an  assump- 
tion that  we  had  a  choice  either  to  remain  as  we  are,  or  to  change;  but 
if  the  facts  already  stated  are  true,  and  the  deductions  from  them  are 
correct,  there  is  an  absolute  necessity  for  the  change.  The  Spanish  laws 
must  be  abrogated  :  the  incongruities  in  your  own  must  be  corrected  : 
rules  must  be  provided  for  defining,  prosecuting  and  trying  the  offences 
not  enumerated  in  the  act  of  1805  :  and  a  penitentiary  must  be  provided 
and  laws  must  be  made  for  regulating  its  discipline,  or  else  some  other 
mode  of  punishment  must  be  substituted  for  the  one  to  which  the 
criminal  is  sentenced,  but  which  there  are  no  means  to  enforce.  There 
is  a  moral  obligation  to  do  this.  No  part  of  it  can  be  omitted,  con- 
sistently with  the  first  duties  which  representatives  owe  to  their  con- 
stituents. There  is  a  necessity  for  all  this  and  more  ;  unless  we  choose 
to  abandon  the  high  station  on  which  so  lately  we  were  placed  by  the 
resolutions  of  your  predecessors  ;  unless,  without  motive  and  contrary 
to  duty,  and  interest,  and  reputation,  we  recede  in  the  path  of  improve- 
ment which  we  ourselves  have  traced,  while  others  to  whom  we  led 
the  way  advance;  unless,  after  having  received  by  anticipation  the  prize 
in  the  race  of  reform,  we  sullenly  refuse  to  proceed  and  suffer  other  na- 
tions to  snatch  it  from  our  hands  ;  unless  we  cease  to  be  intelligent, 
great,  enlightened  and  free;  cease,  in  short,  to  be  ourselves,  and  become, 
what  Louisianians  never  can  be,  regardless  of  national  honour,  careless 
of  the  reputation  they  have  acquired,  insensible  to  their  own  interest 
and  the  happiness  of  their  posterity  ;  a  physical  as  well  as  a  moral  im- 
possibility !  For  nature  must  counteract  her  own  work,  must  take 
away  the  high  sentiments  of  honour  and  patriotism  which  she  has  in- 
fused in  the  minds  of  my  fellow-citizens,  before  they  can  submit  to 
any  thing  that  shall  derogate  from  the  reputation  they  have  acquired, 
or  be  induced  to  renounce  any  undertaking  that  promises  future  glory 
and  happiness  to  their  country. 

Therefore,  whatever  be  the  trouble,  whatever  the  expense  of  the 
measure,  it  must  be  incurred.  But  the  opposers  of  the  system  overrate 
both.  The  one  has  already  been  considered.  It  has  been  shown  to  be 
converted  into  facility,  as  to  those  who  have  not  yet  acquired  a  know- 
ledge of  our  laws:  and  as  to  those  who  have,  it  is  believed  that  little  of 
their  former  acquirement  will  prov6  useless,  as  the  system  will  be 
found  to  contain  all  those  good  provisions  of  the  old  law,  which  are  fa- 
miliar to  them,  with  no  other  alteration  than  was  required  for  the  ar- 
rangement of  the  work  ;  nothing  omitted  but  what  they  would  not  wish 
to  remember  ;  nothing  added  but  that  which  was  necessary  to  enforce 
the  great  principle  on  which  this  branch  of  jurisprudence  ought  to  rest; 
and,  if  the  earnest  endeavours  of  the  reporter  have  not  failed,  they  will 
find  at  least  some  order,  precision  and  conciseness  introduced,  which 
cannot  fail  to  facilitate  study,  aid  the  memory  and  lessen  the  difficulty 
of  reference  in  the  same  degree  that  the  confusion,  ambiguity  and  pro- 
lixity which  now  characterize  our  laws  render  these  operations  difficult. 
The  expense,  as  I  shall  now  proceed  to  show,  although  nominally  of 
large  amount,  is  yet  balanced  by  so  many  advantages  even  in  a  pecu- 
niary view,  as  to  merit  little  consideration,  and  none  at  all  when  it  is 
compared  with  the  least  of  the  evils  attending  our  present  state,  or  of 
those  greater  evils  to  which  they  inevitably  lead. 

The  principal  expense  attending  the  reform,  will  be  the  establishment 
of  the  different  prisons,  recommended  in  the  fourth  code.  A  schedule  to 


102  INTRODUCTORY  REPORT  TO 

this  report,  containing  the  probable  cost  of  erecting  .those  buildings, 
with  the  salaries  of  the  officers  and  attendants  ;  the  expense  of  food  and 
clothing  for  the  prisoners,  and  all  the  other  articles  of  outlay,  calculated 
on  the  most  extensive  scale  that  can  be  required,  will  show,  when  com- 
pared with  the  present  expenses,  much  better  than  any  argument,  what 
additional  burthen  must  be  borne  by  the  funds  of  the  state.  The  mod- 
erate amount  of  which  will  astonish  those  who  have  not  calculated  the 
difference  between  maintaining  a  prisoner  in  idleness,  or  obliging  him 
to  labour  for  his  subsistence  ;  for  it  will  be  found  that  the  saving  made 
by  the  latter  mode  of  treatment,  calculated  on  two  hundred  prisoners, 
will  very  nearly  pay  the  interest  of  the  first  expenditure  required  for  all 
the  proposed  establishments. 

It  is  true  the  sum  required  must  be  advanced  by  the  state  :  but  if 
their  present  funds  are  relieved  to  the  amount  of  the  interest  of  that 
sum,  the  only  present  inconvenience  is  the  opening  a  loan  for  the  prin- 
cipal sum,  to  be  repaid  at  a  future  day.  Before  which  time  the  next 
and  most  important  pecuniary  saving  to  the  state,  in  the  diminution  and 
prevention  of  crime,  will  more  than  enable  the  next  generation  to  pay  it; 
for  it  can  be  shown  as  nearly  to  demonstration  as  the  subject  is  capable 
of,  that  every  juvenile  vagrant  or  offender  that  you  educate  and  reform, 
is  on  an  average  a  saving  to  the  state  treasury  of  more  than  two  thousand 
dollars(cs),  which  would  be  expended  under  your  present  system  in  the 
expenses  of  repeated  convictions  and  maintenance  during  his  successive 
confinements;  while  there  is  no  calculating  the  unequal  tax  that  he  levies 
upon  particular  citizens  by  his  depredations.  This  subject  will  be  re- 
sumed and  more  fully  developed  in  the  introductory  report  to  the  Code 
of  Prison  Discipline. 

4.  I  now  proceed  to  the  objection  to  a  written  code — that  although 
good  in  theory  it  is  bad  in  practice. 

So  far  as  this  objection  is  intended  to  apply  to  any  part  of  the  system 
now  offered  for  your  consideration,  the  answer  must  be  deferred  until 
the  details  of  that  system  come  to  be  examined  ;  here  it  must  be  dis- 
cussed as  an  objection  to  any  written  code  whatever  of  penal  law.  This 
is  a  common  expression,  used  most  frequently  without  attaching  to  it 
any  precise  meaning.  It  conveys  a  vague  idea  of  something  wrong,  and 
is  employed  chiefly  to  avoid  the  difficulty  of  answering  cogent  reasons 
that  are  offered  for  the  adoption  of  any  untried  measure.  As  relates  to 
the  present  subject,  it  is  a  peculiarly  unfortunate  argument  in  this  state; 
for,  as  was  formerly  observed,  it  is  not  untried.  It  is  not  theory  alone. 
It  is  practice  in  the  more  difficult  branch  of  civil  jurisprudence  ;  and 
the  facility  and  success  with  which  that  operation  was  performed,  if  we 
may  trust  to  the  strongest  analogy,  must  insure  the  like  results  to  this. 
Having  heard  under  this  head  nothing  but  the  naked  unsupported  as- 
sertion, a  sufficient  answer  to  it  would  be,  that  it  carries  with  it  its  own 
refutation;  for,  if  in  the  terms  of  the  objection,  the  plan  be  good  in  the- 
ory, it  cannot  be  bad  in  practice.  A  system  of  laws  to  be  good  in  the- 
ory, must  be  well  adapted  to  the  end  proposed(6)  ;  must  be  suited  to 

f»  A  committee  of  (he  legislature  of  New-York,  state  the  case  of  a  prisoner  in  one  of  the 
penitentiaries,  who  was  first  convicted  when  he  was  ten  years  of  age,  and  had  been,  for  re- 
peated offences,  twenty  eight  years  in  confinement.  This  man  alone,  at  the  rate  we  keep 
our  convicts,  would  have  cost  the  state  more  than  five  thousand  dollars,  besides  the  expense 
of  removal  and  conviction. 

(ft)  Lex,  bona  censeri  possit,  qua  sit  intimatione  certa,  prsecepto  justa,  ezecutione  com 


THE  SYSTEM  OF  PENAL  LAW.  1Q3 

the  people  they  are  intended  to  govern  ;  must  be  certain,  convenient 
and  constitutional  ;  in  short,  must  be  good  when  reduced  to  practice. 
If  the  theory  fail  in  any  one  of  those  things  which  are  necessary  to 
put  it  in  execution,  it  must  be  supported  by  bad  reasoning.  There  must 
be  some  fallacy,  which,  being  exposed,  would  show  it  to  be  bad.  Such 
a  theory  ought  to  be  assailed,  not  by  asserting  it  to  be  good  in  itself, 
but  incapable  of  being  executed;  which  is  a  contradiction  in  terms;  but 
by  showing  why  it  cannot  be  reduced  to  practice,  that  is,  by  showing  it 
to  be  a  bad  theory. 

5.  The  only  remaining  objection  to  reducing  the  laws  to  writing  is  this, 
that  every  new  system  necessarily  supposes  the  use  of  new  terms,  and 
those  must  have  their  meaning  settled  by  judicial  decisions  before  their 
import  can  be  understood  ;  that  these  will  create  the  very  uncertainty 
which  the  code  is  intended  to  remedy.  And  in  support  of  this  opinion 
it  is  said,  that  the  Code  of  Justinian,  although  written,  has  produced  as 
many  contradictory  decisions  and  as  voluminous  commentaries  as  the 
common,  which  is  unwritten  law  ;  and  that  the  Code  Napoleon,  though 
but  of  yesterday,  groans  under  the  weight  of  works  intended  to  eluci- 
date it.  If  the  terms  of  the  new  law  are  comprehensive,  it  is  said,  they 
will  include  more,  if  precise,  less  than  the  legislator  intended  ; 
the  judge  must  determine  from  a  wise  examinaton  of  the  words,  and  a 
prudent  attention  to  the  spirit,  what  was  the  real  intent  of  the  law. 
This  has  already  been  done  in  the  common  law.  Its  terms  are  ex- 
plained. The  cases  which  come  within,  and  those  which  are  excluded, 
are  known.  To  unsettle  them  would  create  confusion  ;  and  therefore, 
we  had  better  suffer  the  inconveniences  we  have,  than  fly  to  others 
that  we  know  not  of. 

There  is  some  truth,  but  more  plausibility,  in  this  argument.  It  does 
not,  like  others,  found  itself  on  popular  prejudice  exclusively,  but  has 
weight,  great  weight,  with  many  prudent  men,  who  do  not  detect  the 
fallacy  of  the  argument,  or  perceive  how  little  the  facts  on  which  it  is 
founded,  apply  to  our  circumstances.  I  have  some  hope  of  enabling 
them  to  do  both  ;  and  if  the  enemies  to  written  law,  the  partisans  of 
the  jurisprudence  of  decrees,  are  driven  from  this  position,  I  shall  be 
justified  in  believing  the  field  clear  for  a  consideration  of  the  merits  of 
the  plan  that  is  now  offered. 

Before  we  examine  the  reasoning  we  have  stated,  a  preliminary  ob- 
servation or  two  is  necssary,  on  the  difference  between  the  penal  and 
civil  law,  to  which  last  all  their  facts  and  all  their  reasonings  apply. 
Civil  law,  from  its  nature,  must  govern  all  cases  that  may  arise  in  the 
infinite  series  of  conflicting  claims  and  disputed  rights  between  individ- 
uals ;  claims,  which  arise  from  the  ambiguity  or  silence  of  the  laws  ; 
rights,  which  are  created  by  the  continual  changes  that  occur  in  the  state 
of  society,  in  commerce,  in  the  arts.  Criminal  laws,  on  the  contrary, 
are  infinitely  more  contracted  in  their  operation  :  emanating  from  the 
sovereign  will,  they  admit  of  no  alteration  but  that  which  it  declares. 
Neither  society,  nor  commerce,  nor  the  arts,  in  all  their  progressive  or 
retrograde  movements,  be  they  ever  so  rapid  or  important — not  even 
political  events,  be  they  ever  so  destructive  of  civil  associations,  can 
have  the  slightest  effect  on  the  penal  law.  They  may  call  for  changes, 

moda,  cum  forma  politic  congrua,  ct  generans  virttitcm  subditi?.  Bacon  was  not  a  vain  the- 
orist. 


104  INTRODUCTORY  REPORT  TO 

but  can  produce  none.  That  law  lives  in  itself,  and  can  neither  be 
changed  or  modified,  so  as  to  be  accommodated  to  any  of  those  circum- 
stances, but  by  positive  legislation.  What  the  law  forbids,  is  an  of- 
fence ;  but  the  law  cannot  forbid  without  being  perfectly  intelligible, 
"incertam  si  vocem  det  tuba,  qui  se  parabit  ad  pugnam  ? — incertam  si 
vocem  det  lex,  qui  se  parabit  ad  parendum  ?"  The  trumpet  may  sound 
for  ever,  but  no  one  prepares  for  battle  unless  the  appointed  signal  be 
given.  The  laws  may  speak,  but  can  never  be  obeyed  unless  they  are 
understood. 

An  ambiguous  penal  law,  is  no  law;  and  judicial  decisions  cannot  ex- 
plain it  without  usurping  authority  which  does  not  belong  to  them.  To 
extend  the  law  to  a  case  that  does  not  come  within  the  plain  meaning 
of  its  words,  is  to  make  a  new  law.  Nothing,  it  appears,  can  be  clearer 
than  the  reasoning  which  shows  this.  Suppose  a  law  should  pass,  de- 
claring that  if  Peter  left  the  state,  his  property  should  be  forfeited.  To 
declare,  by  a  judicial  decision,  which  of  the  many  men  bearing  that 
name  was  meant,  would  certainly  be  a  new  law  ;  because  the  individ- 
ual really  intended  could  have  no  notice  that  the  law  applied  to  him  ; 
there  was  no  intelligible  prohibition  ;  the  law  gave  an  uncertain  sound 
and  he  could  not  prepare  himself  to  obey. 

Not  quite  so  in  civil  law.  Its  office  is  to  prevent  individual  rights 
from  being  infringed,  or  to  grant  compensation  for  any  encroachment 
upon  them  ;  and  in  doing  this,  there  is  an  absolute  nesessity  of  deciding 
on  cases  not  previously  provided  for  by  positive  law  ;  in  other  words, 
there  must  be  a  power  of  construction,  for  this  plain  reason,  that  which 
soever  way  the  judge  decides,  his  sentence  affects  private  right.  If  it 
were  a  right  claimed  under  colour  of  a  positive  law,  and  supposed  to  be 
created  only  by  it,  and  that  law  were  ambiguous,  the  same  reasoning 
would  apply  in  civil  that  we  have  used  in  criminal  cases.  The  obligation 
to  respect  that  right,  in  such  case,  having  no  other  origin  but  the  positive 
law,  if  that  were  uncertain,  the  defendant  against  whom  it  was  claimed, 
not  having  any  intelligible  notice  of  the  duty  required  of  him,  could 
not  be  constrained  either  to  perform  it  or  to  make  compensation  for 
omitting  it  ;  and  the  decree  must  be  against  the  plaintiff,  in  the  same 
manner  as  it  would  be  against  the  state,  on  a  prosecution  under  an  am- 
biguous penal  statute.  But  in  the  decision  of  ordinary  questions  this 
is  far  from  being  the  case  ;  there,  as  has  been  said,  the  judge  must  de- 
cide, and  his  decision  must  establish  a  right.  Take  the  common  oc- 
currence of  a  suit  on  a  contract  of  sale,  where  the  defence  is  concealment 
or  fraud  :  here  the  judge,  in  deciding  for  the  defendant,  takes  away  the 
apparent  right  of  the  plaintiff  to  recover  on  his  contract.  In  giving 
judgment  for  the  plaintiff  he  determines,  the  facts  being  conceded,  that 
the  concealment  is  not  of  sufficient  importance  to  vacate  the  sale.  If 
the  case  be  a  new  one,  he  must  decide  without  positive  law  ;  he  must 
frame  his  judgment  by  analogical  reasoning  from  the  law  in  similar 
cases  ;  and  if  it  be  correctly  drawn  it  will  be  respected  for  its  wisdom, 
and  abridge,  by  its  adoption,  the  labour  of  further  investigation  in  sub- 
sequent discussions  of  analogous  cases.  Thus  the  jurisprudence  of  de- 
crees, or  the  authority  of  precedent,  is  by  degrees  established  in  civil 
cases  ;  first,  from  the  necessity  of  deciding  between  conflicting  claims, 
and  afterwards  from  the  very  great  advantage  of  having  settled  and  fixed 
principles,  stare  decisis  being  a  maxim  that  usurps  the  place  of  regular 
legislation  ;  but  its  misfortune,  like  that  of  all  other  illegitimate  power, 


THE  SYSTEM  OF  PENAL  LAW. 


105 


is  this,  that  its  authority  is  uncertain  and  vacillating  ;  it  is  law,  or  not 
law,  according  to  the  discretion  or  passions  of  subsequent  judges,  of 
which  hundreds  of  examples  might  be  given,  more  striking  than  the 
one  hereinbefore  referred  to. 

The  effectual  and  obvious  remedy,  of  a  periodical  legislative  review 
of  these  decisions,  for  the  purpose  of  incorporating  any  new  and  conve- 
nient principles  they  may  establish,  under  their  proper  heads,  in  the 
frame  of  a  code  previously  made,  and  thus  giving  them  the  stamp  of 
legal  authority,  has  not,  it  seems,  ever  yet  occurred  to  any  legislator;  yet 
it  is  an  effectual  mode  of  clothing  judicial  wisdom  and  experience  with 
legislative  authority,  and  making  that  law,  which,  under  our  con- 
stitution, cannot  but  be  considered  as  an  encroachment.  From  this 
glance  at  the  nature,  rise,  and  progress  of  the  law  of  precedent,  and 
the  hint  at  one  of  its  many  evils,  with  the  remedy  suggested  for  it,  it  will 
appear,  first,  that  although  there  is  an  apparent  necessity  for  giving 
some  authority  to  decisions  in  civil  cases,  there  is  none  in  criminal ; 
secondly,  that  this  necessity  is  only  apparent  even  in  civil  cases,  and 
arises  from  the  negligence  of  the  legislative  branch,  to  assert  its  righ.ts 
and  perform  its  constitutional  duties  ;  thirdly,  that  any  construction 
which  a  court  can  put  on  the  terms  of  a  penal  law,  must  either  give 
them  an  operation  different  from  that  contained  in  the  plain  obvious 
meaning  of  those  terms,  or  it  must  be  in  conformity  with  such  plain 
meaning,  and  then  it  follows  conclusively,  that,  in  the  first  instance,  it 
would  be  improper  to  give  the  authority  of  law  to  such  construction, 
and  in  the  last  it  would  be  unnecessary ;  fourthly,  that  if  a  penal  law 
have  no  such  plain  obvious  meaning  in  its  terms,  it  is  deficient  in  an 
essential  requisite  to  its  very  existence,  and  can  have  no  sanction. 

These  deductions  all  relate  to  decisions  on  the  text  of  those  laws 
which  impose  a  penalty  for  their  contravention.     But  there  are  other 
questions  in  criminal  law,  relative  to  evidence  and  procedure,  in  which 
all  the  care  that  may  be  employed  to  provide  for  their  solution,  will 
be  found  insufficient.     To  these  all  that  has  been  said  on  the  subject  of 
precedent  in  civil  cases  applies  ;  and   it  will  be  found  that  means  are 
pointed  out  to  give  to  every  judicial  decision,  on  these  points,  the  force 
of  law,  whenever,  after  a  legislative  discussion,  they  shall  be  found  to 
be  correct.     Add  to  this,  that  especial  care  has  been  taken,  in  framing 
the  new  code,  to  preserve  the  terms  now  in  use,  where  the  same  sense 
could,  consistently  with  the  order  of  the  work,  be  applied  to  them  ;  and 
that  whenever  new  terms  are  found  to  be  necessary,  or  old  ones  have 
a  new  or  more  precise  signification  annexed  to  them,  they  are  fully  ex- 
plained in  the  Book  of  Definitions;  and  then  from  a  consideration  of 
the  whole  subject,  it  will  be  found,  that  the  objection  is  more  plausible 
than  well  founded  ;  and  that  if  any  decisions  are  necessary  to  explain 
the  terms  of  the  new  system,  they  will  be  much  less  numerous,  and 
will  have  greater  authority,  and  can  be  learned  at  less  expense  either  of 
time  or  money,  than  those  which  are  still  necessary  to  elucidate  the 
dark  parts  of  our  present  laws.     The  argument  drawn  from  the  num- 
ber of  commentators  and  contradictory  decisions  on  the  two  written 
codes,  those  of  Justinian  and  Napoleon,  is  plausible,  and  of  course  very 
commonly  used;   but  it  has  little  weight  even  against  a  civil,  much 
less  against  a  penal  code.     And,  among  many  other  reasons  that  might 
be  urged  in  a  dissertation  on  the  subject,  for  this  conclusive  one,  that 
both  those  codes  contain  the  radical  fault,  of  admitting  a  recourse  to  an 
0 


106  INTRODUCTORY  REPORT  TO 

authority  beyond  that  of  the  codes  themselves.  The  authority  of  the 
emperor  in  the  Latin  and  usage  in  the  French  system.  The  best  code 
that  can  be  provided,  is  but  a  frame-work  on  which  a  better  is  to  be 
constructed.  It  must  provide  for  its  own  progress  towards  perfection ; 
but  it  provides  for  its  own  corruption  and  final  destruction,  if  it  admits 
judicial  decisions,  unsanctioned  by  law,  to  eke  out  its  deficient  parts,  to 
explain  what  is  doubtful,  or  to  retrench  what  may  be  thought  bad.  The 
remedy  is  easy,  efficacious,  if  it  succeed  ;  innocent,  if,  contrary  to  all 
reason,  it  should  fail.  It  will  be  found  at  large  in  the  project  of  a  law 
for  adopting  these  codes  ;  and  it  is  confidently  believed,  its  operation 
will  show  that  there  is  no  more  force  in  this  last  objection  than  in 
those  which  preceded  it. 

Enough,  I  hope,  has  been  said  to  clear  the  ground  of  the  general  and 
indefinite  objections  that  have  been  raised  to  the  reformation  which 
was  so  wisely  directed  by  a  former  legislature :  enough,  and  more 
than  enough  to  justify  them  and  their  enlightened  successors.  I 
have  spoken  on  these  subjects  with  a  confidence  that  might  justly  be 
taxed  as  presumption,  if  they  were  my  own  opinions  only  that  I  ex- 
pressed ;  but  I  am  strong  in  their  wisdom,  and  bold  in  the  assertion  of 
principles  which  they  have  sanctioned. 

I  am  now  about  to  approach  different  ground,  and  to  enter  upon  the 
discussion  of  the  different  provisions  of  the  system,  with  very  different 
feelings.  So  far  as  concerns  the  general  principles  on  which  they  were 
directed  to  be  formed,  I  feel  the  same  confidence,  for  I  am  supported 
by  the  same  authority.  But  in  examining  how  well  these  principles 
have  been  reduced  to  the  form  of  practical  precept,  I  cannot  but  feel  a 
diffidence  which  the  uncertainty  of  receiving  the  same  approbation 
naturally  creates ;  though  even  this  is  lessened  by  a  consciousness  of 
having  exerted  every  faculty,  in  the  endeavour  to  make  the  work 
worthy  of  those  who  directed  it,  and  a  blessing  to  those  for  whose  use 
it  was  designed.  Before  I  enter  upon  this  discussion,  however,  and 
come  to  the  consideration  of  the  provisions  of  each  particular  code,  it 
seems  proper  that  I  should  conclude  these  general  introductory  remarks, 
with  some  observations  on  the  characteristics  of  the  whole  system, 
which,  although  they  may  have  been  incidentally  adverted  to  else- 
where, yet  merit  more  particular  attention,  on  account  of  their  novelty, 
and,  as  it  is  also  thought,  of  their  importance. 

The  legislature  of  Louisiana  has  given  the  first  example  of  proclaim- 
ing to  their  constituents  and  to  the  world,  the  principles  by  which 
they  would  be  guided  in  the  great  work  of  penal  legislation.  A  very 
short  law  contained  these  principles,  concisely,  but  clearly  declared  to 
be  the  basis  of  the  code  which  they  directed  to  be  prepared.  These 
were  developed  in  a  subsequent  report ;  and  both,  translated  into  dif- 
ferent languages  and  published  in  different  countries,  have  excited 
an  interest  abroad  which  certainly  would  not  have  been  created  by 
any  ordinary  change  in  the  jurisprudence  of  a  small  and  distant  state. 
Nor  was  there  any  thing  in  the  report  that  could  account  for  the 
attention  it  has  received.  The  style  is  not  marked  by  any  peculiar 
excellence,  and  most  of  the  arguments  it  contains  had  been  before 
used  and  urged  with  better  method  and  greater  force.  What  then 
is  it  that  has  attracted  the  attention  of  the  statesmen  of  Europe  to  the 
legislation  of  one  of  the  least  states  in  our  union  ;  and  of  its  jurists 
and  men  of  letters  to  a  pamphlet,  which  has  no  other  merit  than, 


THE    SYSTEM  OF  PEXAL  LAW.  107 

that  of  containing  true  principles,  simply  stated,  and  elucidated  with- 
out the  aid  of  eloquence  ?  It  is  the  novelty  of  hearing  governors, 
for  the  first  time,  addressing  the  people  in  the  language  of  reason,  and 
inviting  them  to  obey  the  laws,  by  showing  that  they  are  framed  on 
the  great  principle  of  utility  !  It  is  the  imposing  spectacle  exhibited 
by  a  nation,  already  freed  from  the  shackles  of  political  servitude, 
bursting  those  which  the  prejudice  of  ages  had  riveted  on  the  mind  ! 
It  is  the  surprise  occasioned  by  the  simplicity,  and  ease,  and  safety  of  an 
operation,  which  ignorance  and  interest  had  represented  as  perplexed, 
dangerous,  and  difficult !  Other  rulers  have  sometimes  deigned  to  ex- 
plain the  motive  for  making  a  particular  law.  Ours  alone  have  offered 
a  general  system  to  the  consideration  of  the  people  ;  and  told  them,  not 
only  that  it  was  expedient,  but  explained  why  they  thought  it  so  ;  in- 
vited them  to  reflect  as  well  as  to  obey  ;  made  their  precepts  lessons  of 
pure  morality  as  well  as  of  law;  and  showed  that,  consistent  with  the 
public  good,  they  never  can  be  separated.  They  say  to  them,  for  the 
first  time  in  the  history  of  jurisprudential  legislation — "  We  are  about 
to  frame  rules  for  your  government,  in  your  various  relations  to  each 
other  and  to  your  country.  Those,  by  which  you  and  all  other  nations 
have  been  bound,  have  hitherto  been  couched  in  language  only  under- 
stood by  a  few,  who  naturally  made  a  property  of  their  knowledge. 
All  mystery  is  now  at  an  end.  Here  are  the  laws,  and  here  are  the 
principles  by  which  we  were  guided  in  framing  them  !  Judge  whether 
the  principles  are  correct !  Determine  whether  we  have  conformed  to 
them!  It  has  been  said  by  those  of  old,  sic  volo,  sic  jubeo,  stet  pro 
ratione  voluntas — obey  the  law  because  it  is  written;  but  we  say  unto 
you,  obey  the  law  because  it  is  just,  because  it  is  for  your  benefit,  be- 
cause the  principles  on  which  it  is  founded  are  wise !  The  law  has  its 
source,  not  in  our  will,  but  in  reason,  truth,  justice  and  utility  :  of 
all  which  our  will  is  only  the  organ  and  the  record.  When  you  find 
that  we  promulgate  precepts  not  consistent  with  their  dictates,  although 
they  must  be  obeyed  while  they  are  in  force,  yet  the  evil  is  remedia- 
ble, for  with  the  law,  we  give  you  the  rule  in  conformity  with  which 
it  was  intended  to  be  made.  If,  then,  the  rule  be  bad,  or  the  law  be 
not  conformable  to  it,  the  remedy  is  in  your  hands :  dismiss  us  and 
repeal  our  law."  It  is  the  unprecedented  nature  of  this  frank,  simple 
language  that  distinguishes  your  projected  code,  and  that  makes  it  an 
object  of  curiosity  and  interest;  a  theme  for  argument;  and  possibly,  a 
model  for  imitation  in  its  leading  characteristics. 

Another  peculiarity  in  the  plan  now  presented  is,  that  it  is  a  system 
of  which  all  the  parts  are  connected  with,  and  bear  upon,  each  other. 
All  the  written  criminal  codes  hitherto  established  have  been  defective 
in  this  particular.  With  those  of  Draco,  Solon  and  Lycurgus  we  are 
not  sufficiently  acquainted  to  say  more,  than  that  the  fragments  of  them 
that  have  descended  to  us,  do  not  justify  a  belief  that  they  contained 
any  thing  more  than  a  few  arbitrary  enactments,  assigning"  particular 
punishments  to  designated  offences,  without  any  provisions  for  prevent- 
ing the  latter  in  any  other  way  than  by  the  terror  of  the  former,  with- 
out any  rules  of  procedure,  and  mingling  together,  without  order,  the 
civil  and  criminal  branches  of  jurisprudence.  The  same  characters  may 
be  given  of  the  laws  of  the  Twelve  Tables  ;  and  even  that  wonderful 
collection  of  human  wisdom  and  foresight,  to  which  modern  nations  still 


108  INTRODUCTORY  REPORT  TO 

havo  recourse  for  the  best  principles  of  distributive  justice,  the  body  of 
the  Roman  Law,  was  wofully  deficient  in  the  arrangement  which  ought 
to  draw  the  line  between  civil  and  criminal  law.  The  laws  of  thePar- 
tidas  in  some  measure  correct  this  evil;  but  although  the  criminal  code 
is  there  thrown  into  a  separate  division,  yet  penalties  are  profusely 
scattered  among  civil  remedies  ;  and  these  latter  are  often  found  usurp- 
ing the  place  of  punishments. 

Of  modern  codes,  the  Russian,  Prussian,  Tuscan  and  Imperial  are 
more  or  less  liable  to  the  same  reproach,  but  the  penal  code  of  Napo- 
leon in  a  great  degree  avoids  it.  This  defines  offences,  and  a  code  of 
procedure  directs  how  offenders  shall  be  tried  and  punished,  but  here  it 
stops.  Yours,  on  the  contrary,  in  addition  to  the  enunciation  of  prin- 
ciples on  which  I  have  already  remarked,  contains  the  further  essentials 
to  a  complete  plan,  a  code  of  evidence  and  a  book  of  definitions.  The 
book  de.  verborum  signijicatione  in  the  code  of  Justinian,  is  somewhat 
analogous  to  this  last  feature  in  yours,  but  it  differs  in  this,  that  the 
whole  body  of  the  Roman  law  being  only  a  digest  or  compilation 
of  those  before  in  force,  the  words  in  which  it  is  expressed  were  those 
originally  employed,  and  being  the  work  of  different  hands,  these  words 
were  retained,  and  the  book  in  question  was  added  as  a  kind  of  lexicon 
to  explain  them.  Your  code  being  an  original  work,  the  reporter  was 
not  restricted  in  his  selection  of  terms,  and  when  those  he  used  were 
susceptible  of  more  than  one  signification,  or  were  in  their  general  use 
uncertain  or  ambiguous,  he  was  at  liberty  to  annex  to  them  a  precise 
signification,  taking  care  that,  in  the  course  of  the  work,  they 'should  be 
used  in  no  other.  The  great  utility  of  this  part  of  the  system  is  obvious, 
provided  it  has  been  executed  with  the  necessary  precision.  It  is 
that  part  which  has  been  found  the  most  difficult.  The  most  intense  ap- 
plication was  necessary  to  define  terms  the  most  commonly  used,  but 
to  which  many  of  those  who  employed  them  affixed  ideas  more  or  less 
materially  different.  This  difficulty  is  increased  by  the  nature  of  the 
language,  which  very  frequently  does  not  afford  terms  sufficiently 
precise  to  avoid  difficulty,  even  in  the  periphrase  used  in  the  definitions, 
so  that  in  many  instances  I  have  been  under  the  necessity  of  defining 
the  words  employed  to  explain  others.  And,  in  order  to  approach 
nearer  to  that  certainty  so  necessary  in  all  laws,  recourse  has  been  had 
to  corollaries,  examples,  and  illustrations,  as  well  in  the  body  of  the 
law,  as  in  the  book  of  definitions.  This  is  also  a  new  feature  in  legis- 
lation, and  like  many  others  that  had  not  yet  received  the  sanction  of 
experience,  it  was  made  the  subject  of  solicitous  reflection  before  it  was 
adopted.  An  author  whose  maxims  in  law  and  legislation  are  entitled 
to  the  higest  respect(«),  and  whose  rules  I  have  more  than  once  taken 
as  my  guide,  has  said  that  the  lawgiver  ought  not  to  reason,  but  com- 
mand :  the  false  construction  usually  put  upon  this  precept  need  not 
now  be  examined,  here  it  will  only  be  necessary  to  say  that  the  illus- 
trations alluded  to  are  not  reasonings,  and  therefore  do  not  contradict 
the  maxim  ;  they  do  not  purport  to  give  the,  reason  of  the  rule,  but  to 
show  clearly  what  it  is.  Sometimes  this  is  done  by  enlarging,  some- 
times by  restricting,  and  sometimes  by  the  elucidation  of  example,  but 
all  are  only  so  many  amplifications  of  the  rule  in  the  text  ;  all  are  pre- 

(a)  Bacon. 


THE  SYSTEM  OF  PENAL  LAW.  109 

cepts.     The  lawgiver  takes  upon  himself  that  part  of  his  duty  which 
has  heretofore  been  improperly  devolved  upon  the  judge:  the  law  as  it , 
now  stands  gives  the  simple  precept,  the  judge  makes  the  deductions  ; 
he  declares  how  far  the  law  is  intended  to  extend,  what  classes  of  cases 
do  not  come  within  its  purview.     If  language  furnished  words  suf- 
ficiently numerous  to  express  every  idea,  and  sufficiently  definite  to 
admit  of  no  other  construction  than  the  one  intended,  the  legislative 
function  would  end  with  a  simple  exposition  of  its  will  in  the  requisite 
terms  ;  but  unfortunately  this  is  not  the  case.     Languages  were  formed 
in  the  infancy  of  society,  and  of  course  would  contain  terms  commensu- 
rate only  with  the  few  wants  and  simple  ideas,  prevalent  in  that  state  of 
society.     As  the  necessity  for  other  words  increased  with  advancement 
in  civilization,  the  supply  was  furnished  either  by  periphrase,  by  figu- 
rative language,  by  adoption  of  words  or  phrases  from  other  tongues, 
and,  in  very  few  instances,  by  the  creation  of  new  terms — all  of  these, 
except  the  last,  the  fruitful  sources  of  amphibology  and  doubt.     This 
is  not  the  place  to  enter  into  a  discussion  of  the  philosophy  of  language, 
but  it  was  necessary  to  advert  to  the  source  of  this  difficulty,  in  order  to 
show  that  from  this  defect  in  every  language,  the  lawgiver  could,  in 
none,  find  terms  sufficiently  precise  for  the  expression  of  his  will,  in  all 
the  cases  which  might  occur.  And  therefore,  although  the  avowed  object 
of  every  legislator  was  certainty,  yet  in  the  body  of  all  laws,  sometimes 
from  the  negligent  or  unskilful  use  of  the  language,  sometimes  from 
its  internal  defects,  the  legislative  intent  is  so  uncertain,  that  the  chief 
employment  of  the  judiciary  power  has  been,  not  its  proper  function 
of  ascertaining  facts  and  then  applying  to   them  the  provisions  of  a 
known  law,  but  in  the  legislative  task  of  declaring  what  the  law  is. 
Good  laws,  expressed  in  precise  language,  would  destroy  this  confu- 
sion of  powers.      Such   laws   admit  of   but  one   interpretation,   or, 
more  correctly  speaking,  they  admit  of  none.     The  judiciary  power 
has  nothing  to  do  but  to  ascertain  facts,  and  direct  the  execution  of  the 
law  in  the  particular  cases  which  warrant  it.    But  when  the  fact  is  ascer- 
tained, and  the  question  is,  whether  it  comes  within  the  purview  of  a 
law  which  does  not  apply  to  it  in  terms,  or  whether,   although  it  is 
embraced  by  the  letter  of  the  law,  it  shall  be  excluded  from   its  ope- 
ration— the  decision  is  surely  a  legislative  act,  because  it  must  either 
extend  the  words  so  as  to  embrace  the  case,  or  restrict  them  so  as  to 
exclude  it.    But  the  extending  a  statute  or  restricting  it  is  as  clearly  a  leg- 
islative act  as  the  passing  of  the  statute  was;  a  particular  legislative  act 
as  respects  the  case  under  consideration  ;  a  general  one,  by  the  doctrine 
of  precedent,  as  respects  all  others.     Yet  this  duty  has  devolved  upon 
the  judiciary,  even  in  countries  where  the  division  of  the  several  depart- 
ments is  a  fundamental  principle;  so  much  so,  that  the  abuse  has  become 
the  rule  ;  and  it  is  as  commonly  said  that  the  office  of  the  judge  is  to 
interpret  the  laws,  as  that  it  is  his  duty  to  apply  them. 

To  avoid  misapprehension,  let  it  be  clearly  understood,  that  in  no 
part  of  this  system  is  the  judge  inhibited  from  resorting  to  all  the  means 
which  grammatical  construction,  the  context  of  the  law,  the  signification 
usually  given  to  the  words  employed,  or  their  technical  meaning  in  re- 
ference to  the  subject  matter,  will  afford  for  discovering  the  true  sense 
of  the  act.  This  operation  must  of  necessity  be  performed.  It  is  di- 
rected by  the  text  of  the  code,  and  indeed  is  so  unconsciously  peformed 


110  INTRODUCTORY  REPORT  TO 

in  the  common  intercourse  of  life(«)  that  it  cannot  be  called  an  inter- 
pretatfbn.  That  which  is  reasoned  against  here,  and  forbidden  by  the 
code,  is  not  the  application  of  the  rules  of  grammar  and  common  sense 
to  discover  from  the  language  of  the  law  what  it  intends  ;  but  the  en- 
croachment on  the  legislative  functions  begins,  when  judges  talk  of 
distinctions  between  the  letter  and  the  spirit  of  the  law,  and  forget  the 
limits  of  their  authority,  so  far  as  to  supply  omissions  and  retrench  su- 
perfluities in  statutes.  I  know  that  the  inaccurate  language  of  many 
statutes,  has,  in  several  cases,  reduced  the  judge  to  a  kind  of  necessity  of 
exceeding  his  constitutional  powers,  because  the  legislator  has  neglected 
his,  and  thus  furnished  a  plausible  excuse  for  this  encroachment,  and  I 
acknowledge,  that  for  the  most  part,  it  has  been  beneficially,  or  at  least, 
not  oppressively  exercised.  But  it  is  not  the  less  an  encroachment.  In 
England  it  is  part  of  the  common  law  that  judges  should  exercise  this 
power.  But  that  part  of  the  common  law  which  regulates  the  distribu- 
tion of  fundamental  powers,  is  the  constitution  ;  therefore  the  exercise 
of  this  power,  is  there  a  constitutional  right.  In  the  state  of  Louisiana 
on  the  contrary,  it  is  no  part  of  our  constitution — it  is  expressly  for- 
bidden by  that  instrument.  If  the  act  of  declaring  to  be  law,  and  en- 
forcing as  such,  something  which  the  legislature  has  not  prescribed,  or 
declaring  that  what  they  have  prescribed  shall  not  have  the  force  of  law, 
under  whatever  pretexts  such  acts  be  done,  be  the  exercise  of  legislative 
powers  ;  then  is  the  act  of  enlarging  or  restraining  the  words  of  a  stat- 
ute, by  a  constructive  reference  to  its  spirit,  expressly  forbidden  by  our 
constitution,  which  directs,  both  in  affirmative  and  negative  terms,  not 
only  that  the  three  great  departments  shall  be  kept  separate,  but  that 
no  person  invested  with  one  of  these  powers  shall  exercise  the  functions 
of  either  of  the  others.  What,  then,  is  our  remedy  for  the  evil  of  am- 
biguous laws  ?  The  judges  cannot,  as  in  England,  supply  it.  The 
legislature  must  eradicate  the  mischief,  instead  of  suffering  it  to  be  tam- 
pered with  by  the  quackery  of  judicial  legislation.  Laws  must  be 
brought  back  to  their  original  simplicity.  They  must  be  expressed  in 
purer  terms  when  the  language  affords  them,  and  when  no  others  can  be 
found  but  such  as  admit  of  a  double  sense,  they  must  be  explained  by 
a  periphrasis,  elucidated  by  examples.  The  exceptions  intended  must 
be  stated,  the  true  deductions  made,  and  such  false  conclusions  as  are 
apprehended,  expressly  negatived.  This  is  what  has  been  attempted 
to  be  done  by  the  feature  in  the  code  now  under  consideration.  If 
the  attempt  has  been  only  partially  successful,  it  cannot,  it  is  believed, 
be  doubted  that  the  law  will  be  better  understood  by  this  course  ;  be- 
cause it  is  precisely  in  this  way  that  the  advocates  for  the  jurisprudence 
of  decrees  contend  that  the  law  is  better  elucidated  by  the  court — every 
precedent  is  but  an  example — every  decision  it  contains  is  a  deduction 
from  the  text  of  the  law,  declaring  affirmatively  what  is,  or  negatively 
what  is  not,  its  intent ;  and  those  who  say  that  this  task  can  be  well 

(a)  Instances  of  this  are  scarcely  necessary.  "  John  fell  upon  Peler  and  bruised  him  se- 
verely." If  (he  context  shows  that  they  were  travelling  together  in  a  carriage  which  was 
overturned,  we  shall  have  one  sense  of  this  phrase  ;  if  it  informs  us  Jhat  they  were  quar- 
relling, we  shall  have  another.  The  instantaneous  operation  of  the  mind  in  connecting  the 
phrase  used  with  the  preceding  matter  can  scarcely  be  called  an  interpretation,  though  the 
words  themselves  may  convey  very  different  ideas. 


THE  SYSTEM  OF  PENAL  LAW.  Ill 

performed,  long  after  the  law  has  been  made,  by  judges  who  had  no 
agency  in  making  it,  cannot  deny  that  it  may  be  better  done  at  the  time 
of  giving  the  law,  by  the  legislator  from  whom  it  emanates,  who  may 
reasonably  be  supposed  best  to  know  his  own  intentions.  If  after  hav- 
ing expressed  his  will  in  general  terms,  he  should  find,  on  reflection, 
that  the  words  he  has  employed  will  admit  of  several  constructions,  one 
of  which  only  he  intends  to  enforce  ;  if  he  should  find  that  after  settling 
the  direct  application  of  the  law,  deductions  may  be  made  from  it,  which 
he  did  not  intend  to  allow  ;  if,  from  certain  false  reasonings  which  have 
prevailed,  or  which  circumstances  induce  him  to  fear  may  prevail,  he 
is  inclined  to  apprehend  that  his  law  will  not  be  applied  to  the  cases  he 
intended  ;  or,  lastly,  although  he  intends  that  his  law  shall  apply  gene- 
rally, if  he  should  find  there  are  certain  cases  which  he  desires  to  except 
from  its  operation,  what,  under  such  circumstances,  is  it  the  part  of  a  wise 
legislator  to  do  ?  To  devolve  upon  the  judiciary  the  task  of  expressing 
his  real  intent,  of  making  his  deductions,  stating  his  exceptions,  and 
giving  to  his  law  all  the  extension  and  restriction  which  it  was  his  ob- 
ject to  effect  ?  Or  to  perform,  as  far  as  may  be  practicable,  his  own  duty? 
The  only  reasonable  answer  that  can  be  given  to  this  inquiry  would 
justify  the  course  that  has  been  taken.  It  is  scarcely  necessary  to  reply 
to  the  objection,  that  after  all  the  elucidation  that  can  be  made,  the  law 
may  be  obscure  ;  after  all  the  care  that  can  be  taken,  it  may  be  imper- 
fect ;  after  all  the  cases  that  can  be  foreseen,  others  will  be  found  to 
have  been  omitted.  No  duty  of  society,  moral  or  religious,  would  be 
performed,  if  we  were  deterred  by  such  arguments.  Yet,  strange  as  it 
may  appear,  this  fallacy  has  its  effect,  and  we  submit,  particularly  in 
jurisprudence,  to  oppressive  absurdities,  because  no  remedy  can  be 
proposed  for  removing  them,  that  does  not  bear  the  mark  of  all  human 
institutions,  that  of  having  some  defect  or  inconvenience  attached  to  it. 
But,  although  new  in  the  simplicity  of  its  form,  this  feature  of  the  code 
is  not  entirely  so  in  substance.  It  takes  the  place,  advantageously  it  is 
hoped,  of  the  loose  preambles  formerly  used,  and  in  some  instances  re- 
tained in  our  legislation  ;  of  the  provisions  exempting  particular  sub- 
jects from  general  enactments  ;  and  in  a  great  measure  supersedes  the 
class  of  statutes  whose  titles,  an  act  to  explain,  an  act  entitled,  an  act 
to  amend,  an  act  in  addition  to,  an  act  to  repeal,  an  act,  fyc. ,  were  a 
puzzle,  and  the  references  of  which,  from  one  statute  to  another,  were 
as  difficult  to  trace  as  the  most  involved  table  of  descents. 

The  Introductory  Reports  to  the  several  Codes  of  crimes  and  punish- 
ments, of  procedure,  of  evidence,  and  of  reform  and  prison  discipline, 
which  compose  this  system,  will  be  found  to  contain  a  notice  of  the 
changes  in  our  present  law,  on  those  subjects  respectively  which  are 
proposed,  and  the  reasons  at  large  for  introducing  them.  They  will 
be  longer  and  more  argumentative,  as  this  has  been,  than  would  have 
been  necessary,  if,  still  a  member  of  your  honourable  body,  I  could 
meet  objections  as  they  are  raised,  and  make  the  corrections  which  your 
superior  wisdom  would  suggest.  Having  offered  nothing  without  re- 
flection, I  have  reasons  for  all  I  have  proposed.  Many  of  them,  pro- 
bably, will  be  found  insufficient  to  support  my  conclusions,  but  those 
conclusions  are  honestly  if  not  wisely  drawn,  and  the  system  which 
they  support  is  submitted  in  the  full  confidence  that  it  will  receive  a 
air,  a  full,  and  a  deliberate  consideration.  Fair,  without  prejudice 


112  INTRODUCTORY  REPORT,  &C. 

against  the  reporter  for  the  opinions  he  may  entertain  on  other  subjects, 
or  against  his  doctrines  for  their  novelty;  full,  after  a  consideration  of 
the  whole  system  and  the  bearing  of  its  different  parts  on  each  other  ; 
deliberate,  without  rejecting  any  one  provision,  until  the  reasons  for 
proposing  it  have  been  maturely  weighed  and  its  probable  effects  cal- 
culated. A  decision  thus  made  must  be  wise,  and  will  doubtless  prove 
satisfactory  to  your  constituents,  and  honourable  to  your  country  and 
yourselves. 


INTRODUCTORY  REPORT 


CODE   OF  CRIMES   AND   PUNISHMENTS. 


AFTER  noticing  and  accounting  for  some  variations  in  the  arrange- 
ment of  the  work  from  the  original  plan,  and  giving  a  slight  reference 
to  some  of  its  leading  principles,  it  is  proposed  in  this  report  to  review 
the  CODE  OF  CRIMES  AND  PUNISHMENTS,  examine  the  principal  changes 
it  purports  to  make,  and  offer  the  reasons  on  which  they  are  founded. 

By  the  Report  on  the  Plan  of  a  Penal  Code(a)  made  in  1822  it  was 
proposed  to  comprise  the  whole  system  of  penal  law  in  one  code,  giving 
a  separate  book  to  each  of  the  four  divisions — crimes  and  punishments, 
procedure,  evidence,  and  reform  and  prison  discipline,  and  to  appro- 
priate another  to  the  definition  of  the  technical  terms  used  in  the  body 
of  the  work.  It  was,  however,  soon  discovered,  that,  by  this  arrange- 
ment, the  subdivisions  of  titles,  chapters,  sections,  and  articles,  would 
not  be  sufficiently  numerous  for  preserving  order  in  the  distribution  of 
each  of  the  several  great  divisions  ;  by  throwing  them  into  distinct 
codes,  an  additional  great  division  was  gained,  and  an  easier  mode  of 
reference  procured.  Each  of  those  great  divisions,  therefore,  in  the 
system  now  presented  forms  a  separate  code,  and  the  book  of  definitions 
is  a  kind  of  appendix  to  all,  and  preserves  the  form  originally  given  to  it. 

This  is  merely  a  change  of  form.  But  there  is  also  a  material  addi- 
tion in  point  of  substance  :  two  institutions  are  provided  for  in  the 
code  of  prison  discipline,  under  the  titles  of  the  School  for  Reform 
and  the  House  of  Detention,  which  were  only  incidentally  referred 
to  in  the  original  report  ;  the  necessity  for  which  is  fully  explained  in 
the  introductory  report  to  that  code.  With  this  variation  and  these 
additions,  the  plan  contained  in  the  report,  which  received  the  sanction 
of  the  legislature,  has  been  strictly  pursued. 

Most  of  the  reflections  which  would  find  their  place  in  a  general 
view  of  the  system,  have  been  either  anticipated  in  the  report,  or  will 
so  readily  occur  to  the  members  of  the  General  Assembly,  that  it  would 
be  abusing  their  indulgence  even  to  advert  to  them  here.  There  are 
some,  however,  of  such  importance  that  they  cannot  be  totally  omitted; 
but  in  discussing  them,  all  arguments  formerly  used  will  either  be 
carefully  avoided,  or  referred  to  uo  further  than  is  deemed  necessary 

(a)  Report  on  the  Plan  of  a  Penal  Code,  p.  6. 


114  INTRODUCTORY  REPORT  TO 

for  the  understanding  of  any  new  course  of  reasoning,  or  the  applica- 
tion of  any  new  facts,  that  may  be  introduced. 

At  our  entrance  on  the  subject  we  are  met  by  the  difficulty  of  dis- 
covering the  true  theory  of  penal  law.  Philosophy  must  point  it  out, 
for  it  depends  on  a  deep  investigation  of  the  faculties  of  the  human 
mind,  and  of  their  usual  employment ;  and  wise  legislation  must  adapt 
it  to  the  use  of  mankind.  At  no  preceding  period  has  the  science  of 
jurisprudence,  and  more  particularly  penal  jurisprudence,  attracted 
such  close  attention  as  at  present.  At  no  period  has  the  progression  I 
have  referred  to,  from  theoretic  truth  to  practical  utility,  been  more 
apparent,  or  promised  more  important  and  beneficial  results.  Learned 
and  good  men  are  directing  their  time  and  talents  to  the  subject ;  and 
in  the  intellectual  conflict  which  this  interesting  discussion  has  pro- 
duced, it  is  highly  gratifying  to  observe,  that  the  principles  which  you 
have  sanctioned  have  been  confirmed  by  the  best  opinions,  and  sup- 
ported by  the  most  conclusive  arguments.  Even  those  who  disagree 
on  other  points,  unite  in  approving  the  general  doctrines  on  which  you 
have  directed  your  code  to  be  prepared  ;  although,  as  might  be  ex- 
pected, they  differ  in  the  conclusions  that  may  be  drawn  from  them, 
and  refer  their  authority  to  different  sources.  Thus,  while  all  agree 
that  the  true  end  of  penal  jurisprudence  is  to  prevent  crimes,  and  that 
the  doctrine  of  vindictive  law  is  in  the  highest  degree  absurd  and  unjust, 
some  insist  that  crimes  are  to  be  repressed  only  by  the  example  of  pun- 
ishments; others,  that  reformation  is  the  only  lawful  object.  Some  re- 
fer the  right  to  punish  to  an  implied  contract  between  society  and  its 
members  ;  others,  to  the  principle  of  utility  alone  ;  and  there  are  those 
again  who  admit  of  no  other  standard  than  abstract  justice.  Each  of 
these  has  its  partisans  in  the  conflict.  Without  entering  into  the  ab- 
stract reasoning  to  which  they  lead,  we  may  content  ourselves  with 
this  important  result : — that  whether  the  right  to  punish  be  founded  on 
contract,  or  utility,  or  justice  ;  whether  the  object  be  to  punish  or  re- 
form ;  whatever  be  the  true  doctrine  on  either  of  these  subjects,  we 
have  the  satisfaction  to  know,  that  by  a  singular  felicity,  if  either  the- 
ory be  right,  the  practical  results  we  have  drawn  from  our  reasoning 
cannot  be  wrong,  for  all  the  provisions  of  our  system  coincide  with 
abstract  justice,  with  general  utility,  and  with  the  terms  of  any  suppos- 
able  original  contract ;  and  whether  reformation,  or  punishment,  be 
the  true  means  of  preventing  crimes,  our  plan  of  prison  discipline  will 
effect  the  end,  for  it  embraces  both. 

If  upon  a  critical  examination  of  the  system  proposed  to  you,  it 
should  be  found  to  have  this  extraordinary  adaptation  to  principles  that 
have  been  considered  as  discordant,  it  will  certainly  go  far  to  prove 
that  the  theoretic  disputes  have  turned  more  upon  terms,  than  on  any 
real  difference  between  them.  For  instance,  if  the  supposed  social 
contract  ever  existed,  the  foundation  of  it  must  have  been  the  preserva- 
tion of  the  natural  rights  of  its  members.  And  this  makes  it,  in  all  its 
effects,  the  same  as  the  theory  which  adopts  abstract  justice  as  the  basis 
of  the  right  to  punish  ;  which,  properly  defined,  is  only  that  which 
secures  to  every  one  his  right ;  and  if  utility,  the  remaining  source  to 
which  this  power  is  referred,  be  found  to  be  so  closely  united  with 
justice,  as  in  penal  jurisprudence  to  be  inseparable,  it  will  follow  that 
any  system  founded  on  one  of  these  principles,  must  be  supported  by 
the  other. 

In  the  same  manner,  as  to  the  means  for  attaining  the  object  common 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  115 

to  all,  the  prevention  of  crime,  if  the  most  efficacious  punishment  is 
that  which  also  best  produces  reform,  then  the  several  theories  are 
reconciled  in  practice,  however  they  may  differ  in  the  arguments  they 
use. 

It  has  therefore  been  thought  more  proper  to  abstain  from  entering 
the  lists  of  controversy  with  either  of  the  disputants,  and  to  adopt,  im- 
plicitly, the  tenets  of  neither  school;  but  to  be  content  with  uniting,  if 
we  can,  the  suffrage  of  all  in  the  practical  results  we  shall  establish. 
There  is,  however,  one  of  these  results,  which,  although  clearly  dedu- 
cible  from  the  first  principles  established  by  all,  is  not  )Tet  generally 
admitted  in  practice  ;  that  feature  which  so  honourably  distinguishes 
from  the  existing  laws  of  any  other  nation,  the  plan  your  predecessors 
unanimously  approved,  and  which  has  been  one  exciting  cause  of  the  at- 
tention which  the  European  world  is  now  giving  to  the  subject:  you  may 
easily  imagine  that  I  mean  the  abolition  of  the  punishment  of  death. 
Seldom  has  any  doctrine  made  such  rapid  strides  as  this  has  in  public 
opinion.  Although  opposed  by  inveterate  prejudices,  long  habits,  mis- 
taken religious  opinions,  and  the  general  indefinite  fear  of  innovation  ; 
yet  its  proselytes  are  becoming  every  day  more  numerous;  the  example 
of  our  state  is  every  where  quoted  ;  the  future  measures  of  its  legisla- 
ture are  expected  with  the  greatest  interest;  and  the  final  abolition  of  a 
punishment,  repugnant  to  our  natures,  is  expected  from  you  with  con- 
fidence, not  unmixed  with  anxiety,  by  the  whole  civilized  world.  An 
enlightened  citizen  of  Geneva(«)  has  published  proposals  for  a  prize 

(a)  Mr  Sellon,  member  of  the  sovereign  representative  council  of  Geneva,  as  early  as 
1816,  proposed  to  the  Council  to  abolish  the  punishment  of  death  ;  and  in  1826  he  offered 
the  prize  referred  to  in  the  text.  In  his  proposals,  after  citing  the  opinions  of  Beccaria  and 
Bentharn,  he  adds — "  I  finish  these  observations  by  producing  a  document  the  most  recent 
and  the  most  conclusive  in  favour  of  my  proposition.  It  is  the  accession  of  the  general  as* 
sembly  of  Louisiana  to  the  principles  laid  down  by  Mr  Livingston  in  his  report.  My  fellow 
citizens  will  there  see  a  republic  adopting  dispositions,  of  which  the  principal  one  is,  the 
absolute  suppression  of  the  punishment  of  death."  He  then  gives  a  copy  of  our  law  of 
1820,  the  certificate  of  my  appointment,  all  that  part  of  the  report  relating  to  the  punishment 
of  death,  and  the  resolution  approving  of  the  report.  In  a  note  on  the  law,  he  says,— 
14  Having  no  other  object  in  this  writing  than  to  convince  my  fellow  citizens  that  the  aboli- 
tion of  the  punishment  of  death  would  be  a  measure  both  useful  and  honourable  for  my 
country,  I  have  thought  that  this  end  could  not  be  better  attained  than  by  making  them  ac- 
quainted with  the  report  of  Mr  Livingston,  made  to  the  general  assembly  of  Louisiana. 
Louisiana  is  a  republic.  It  is  a  component  part  of  an  illustrious  union,  as  we  form  part  of 
the  Swiss  confederation  ;  and  the  constitution  of  the  United  States,  as  well  as  our  federal 
act,  permits  the  members  to  provide  for  themselves  the  best  laws,  even  when  they  differ 
from  those  of  the  other  states.  We  owe  to  Mr  Taillandier  the  translation  of  this  report,"  &c. 
And  he  concludes  his  programme  by  citing  the  examples  of  modern  nations,  in  which  this 
abolition  has  been  carried  into  effect.  1.  Russia,  under  Elizabeth.  2.  Tuscany,  under  Leo- 
pold. 3.  "  Louisiana,  in  America,  which,  on  the  report  of  Mr  Livingston,  by  a  solemn 
resolution  of  the  sovereign  assembly,  has  decreed  the  absolute  suppression  of  this  punish- 
ment. This  report,  in  which  it  will  be  seen  that  the  author  has  collected  all  the  experience 
of  the  past  and  present  times*,  appears  to  me  to  be  a  document  of  the  greatest  interest  for 
Geneva,  whose  position,  population,  and  constitution,  have  a  great  resemblance  to  those  of 

*  He  who  can  accuse  me  of  vanity  in  making  this  and  similar  citations,  is  incapable  of 
comprehending  how  utterly  this  miserable  boyish  feeling  is  incompatible  with  the  frame  of 
mind  necessary  for  the  consideration  of  subjects  on  which  the  happiness  of  a  nation  may 
depend.  Feeling  myself  superior  to  such  suspicions,  I  shall  not  sacrifice  any  thing  that  I 
think  may  promote  the  great  object,  to  the  fear  of  incurring  them. 


116  INTRODUCTORY  REPORT  TO 

Essay  on  the  subject,  in  which  the  arguments  for  the  abolition  which 
have  been  approved  by  this  state,  are  copied  as  a  text.  A  society  in 
Paris  has  followed  the  example.  The  several  periodical  papers  of 
France,  England,  Germany,  and  Holland  are  filled  with  disquisitions 
for  the  most  part  highly  approving  of  the  plan  of  abolition  ;  but  none, 
as  far  as  I  have  perceived,  even  of  those  who  doubt  its  success,  dis- 
couraging the  experiment  as  a  dangerous  one. 

If  this  principle  is  retained  in  our  code,  it  dates  back  to  the  vote  of 
approval,  and  secures  to  us  a  name  among  nations  to  which  our  relative 
population  or  strength  would  not,  for  ages,  have  entitled  us;  a  distinc- 
tion more  honourable  than  any  that  wealth  or  power  or  advancement 
in  any  other  science  could  give — and  I  need  not  observe  to  the  en- 
lightened body  I  address,  how  much  of  that  distinction  possessed  by  a 
country  is  reflected  back  upon  its  citizens  ;  and  in  what  degree,  while 
they  promote  the  honour  of  the  nation,  they  augment  the  happiness  of 
the  individuals  who  compose  it.  It  is  the  firm  persuasion  that  both 
will  be  increased,  in  an  incalculable  degree,  by  the  measure  in  ques- 
tion, that  induces  me  to  press  it  again  on  the  consideration  of  the  legis- 
lature, and  to  add  a  very  few  reflections  to  the  arguments  which  were, 
on  a  former  occasion,  considered  as  conclusive.  I  then  (a)  expressed 
an  opinion  that  the  right  to  punish  by  death,  might  be  established  in 
cases  where  the  importance  of  the  object  to  be  obtained,  and  the  ne- 
cessity of  inflicting  it  in  order  to  attain  that  object,  could  both  be  suffi- 
ciently shown;  but  my  argument  denied  the  existence  of  such  necessity. 
On  reviewing  that  part  of  the  report,  I  think  it  requires  some  elucida- 
tion. 

Existence  was  the  first  gift  of  Omnipotence  to  man.  Existence, 
accompanied  not  only  by  the  instinct  necessary  to  preserve  it,  and  to 
perpetuate  the  species,  but  with  a  social  (not  merely  a  gregarious)  dis- 
position, which  led  so  early  to  the  formation  of  societies,  that  unless  we 
carry  our  imagination  back  to  the  first  created  being,  it  is  scarcely  poss- 
ible to  imagine,  and  certainly  impossible  to  trace,  any  other  state  than 
that  of  the  social — it  is  found  wherever  men  are  found,  and  must  have 
existed  as  soon  as  the  number  of  the  species  were  sufficiently  multiplied 
to  produce  it.  Man,  then,  being  created  for  society,  the  Creator  of 
man  must  have  intended  that  it  should  be  preserved;  and  as  he  acts  by 
general  laws,  not  by  special  interference,  (except  in  the  cases  which 
religion  directs  to  believe),  all  primitive  society,  as  well  as  the  indivi- 
duals of  which  it  is  composed,  must  have  been  endowed  with  certain 
natural  rights  and  correspondent  duties,  anterior  in  time,  and  paramount 
in  authority,  to  any  that  may  be  formed  by  mutual  consent.  The  first 
of  these  rights,  perhaps  the  only  one  that  will  not  admit  of  dispute,  is 
as  well  on  the  part  of  the  individual  as  of  the  society,  the  right  to  con- 
tinue the  existence  given  by  God  to  man,  and  by  the  nature  of  man,  to 

Louisiana,  which  member  of  a  federation,  as  Geneva  is,  has  given  to  itself  good  laws  without 
consulting  her  neighbours  on  the  subject,  giving  them  a  noble  and  wise  example  to  follow, 
and  not  fearing  that  a  mild  legislation  would  attract  criminals.  It  is  to  be  hoped,  that  this 
example  will  be  followed  by  us."  And  he  adds, — "  It  is  easy  to  make  this  experiment.  Al! 
the  world  will  approve  it.  The  glory  will  be  reflected  on  the  whole  nation,  and  history  will 
certainly  make  honourable  mention  of  the  people  which  shall  first  renounce  a  practice  no 
longer  required  by  necessity,  which  alone  could  excuse  it." 
(a)  Report  to  the  Plan  of  a  Penal  Code,  p.  81. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  117 

the  social  state  in  which  he  was  formed  to  live :  and  the  correspondent 
mutual  duty  of  the  individual  and  of  the  society  is  to  defend  this  right; 
but  when  the  right  is  given,  the  means  to  enforce  it  must,  in  natural 
as  well  as  positive  law,  be  admitted  to  be  also  given.  If  then  both 
individuals  and  the  society  have  the  right  to  preserve  their  several  ex- 
istence, and  are,  moreover,  under  the  reciprocal  duty  to  defend  it  when 
attacked,  it  follows,  that  if  one  or  the  other  is  threatened  with  destruc- 
tion, which  cannot  be  averted  but  by  taking  the  life  of  the  assailant, 
the  right,  nay  more,  the  duty  to  take  it  exists:  the  irresistible  impulse 
of  nature  indicates  the  right  she  has  conferred,  and  her  first  great  law 
shows  that  life  may  be  taken  in  self-defence.  It  is  true  the  aggressor 
has  the  same  right  to  exist;  but  if  this  right  were  sacred  while  he  was 
attempting  to  destroy  that  of  another,  there  would  be  co-existing,  two 
equal  and  conflicting  rights,  which  is  a  contradiction  in  terms.  The 
right,  therefore,  I  speak  of,  is  proved ;  but  both  in  the  individual  and 
in  society  it  is  strictly  defensive — it  can  only  be  exerted  during  that 
period  when  the  danger  lasts,  by  which  I  mean  when  the  question  is, 
which  of  the  two  shall  exist,  the  aggressor  or  the  party  attacked, 
whether  this  be  an  individual  or  the  society  :  before  this  crisis  has 
arrived,  or  after  it  has  passed,  it  is  no  longer  self-defence,  and  then 
their  rights  to  enjoy  existence  would  be  co-existent  and  equal,  but  not 
conflicting,  and  for  one  to  deprive  the  other  of  it  would  be  of  course 
unjust. 

Therefore,  the  positions  with  which  I  set  out  seem  to  be  proved. 
That  the  right  to  inflict  death  exists,  but  that  it  must  be  in  defence, 
either  of  individual  or  social  existence(a);  and  that  it  is  limited  to  the 
case  where  no  other  alternative  remains  to  prevent  the  threatened  de- 
struction. 

In  order  to  judge  whether  there  is  any  necessity  for  calling  this  ab- 
stract right  into  action,  we  must  recollect  the  duty  imposed  upon  society 
of  protecting  its  members,  derived,  if  we  have  argued  correctly,  from 
the  social  nature  of  man,  independent  of  any  implied  contract.  While 
we  can  imagine  society  to  be  in  so  rude  and  imperfect  a  state  as  to  ren- 
der the  performance  of  this  duty  impossible  without  taking  the  life  of 
the  aggressor,  we  must  concede  the  right.  But  is  there  any  such  state 
of  society  ?  Certainly  none  in  the  civilized  world,  and  our  laws  are 
made  for  civilized  man.  Imprisonment  is  an  obvious  and  effectual 
alternative;  therefore,  in  civilized  society,  in  the  usual  course  of  events, 
we  can  never  suppose  it  necessary,  and  of  course  never  lawful :  and 
even  among  the  most  savage  hordes,  where  the  means  of  detention 
might  be  supposed  wanting — banishment,  for  the  most  part,  would  take 
away  the  necessity  of  inflicting  death.  An  active  imagination,  indeed, 
might  create  cases  and  situations  in  which  the  necessity  might  possibly 
exist — but  if  there  are  any  such,  and  they  are  sufficiently  probable  to 
justify  an  exception  in  the  law,  they  should  be  stated  as  such,  and  they 
would  then  confirm  the  rule;  but  by  a  perversity  of  reasoning  in  those 
who  advocate  this  species  of  punishment,  they  put  the  exception  in  the 
place  of  the  rule,  and  what  is  worse,  an  exception  of  which  the  possi- 
bility is  doubtful. 

It  may  be  observed,  that  I  have  taken  the  preservation  of  life  as  the 

(a)  This  explains  the  part  of  the  report  on  the  Plan  of  a  Penal  Code  which  relates  to  the 
comparison  between  the  evil  of  the  offence  and  the  punishment. 


118  INTRODUCTORY  REPORT  TO 

only  case  in  which  even  necessity  could  give  the  right  to  take  life,  and 
that  for  the  simple  reason,  that  this  is  the  only  case  in  which  the  two 
natural  rights  of  equal  importance  can  be  balanced  ;  and  in  which  the 
scale  must  preponderate  in  favour  of  him  who  defends  against  him  who 
endeavours  to  destroy.  The  only  true  foundation  for  the  right  of  in- 
flicting death,  is  the  preservation  of  existence.  This  gift  of  our  Creator 
seems,  by  the  universal  desire  to  preserve  it  which  he  has  infused  into 
every  part  of  his  animal  creation,  to  be  intended  as  the  only  one  which 
he  did  not  intend  to  place  at.  our  disposal.  But,  it  may  be  said,  what 
becomes  of  our  other  rights  ?  Are  personal  liberty,  personal  inviola- 
bility and  private  property  to  be  held  at  the  will  of  any  strong  invader  ? 
How  are  these  to  be  defended,  if  you  restrain  the  right  to  take  life  to 
the  single  case  of  defence  against  an  attack  upon  existence  ?  To  this  it 
is  answered:  Society  bemg  a  natural  state,  those  who  compose  it  have 
collectively  natural  rights.  The  first  is  that  of  preserving  its  existence; 
but  this  can  only  be  done  by  preserving  that  of  the  individuals  which 
compose  it.  It  has,  then,  duties  as  well  as  rights;  but  these  are  wisely 
ordered  to  be  inseparable.  Society  cannot  exert  its  right  of  self-pre- 
servation without,  by  the  same  act,  performing  its  duty  in  the  preser- 
vation of  its  members.  Whenever  any  of  those  things  which  are  the 
objects  of  the  association,  life,  liberty  or  property,  are  assailed,  the 
force  of  the  whole  social  body  must  be  exerted  for  its  preservation;  and 
this  collective  force,  in  the  case  of  an  individual  attack,  must,  in  ordi- 
nary cases,  be  sufficient  to  repel  it  without  the  sacrifice  of  life  ;  but  in 
extraordinary  cases,  when  the  force  of  the  assailants  is  so  great  as  to 
induce  them  to  persevere  in  a  manner  that  reduces  the  struggle  to  one 
for  existence,  then  the  law  of  self-defence  applies. 

But  there  may  be  a  period  in  which  individual  rights  may  be  injured 
before  the  associated  power  can  interfere.  In  these  cases,  as  the  nature 
of  society  does  not  deprive  the  individual  of  his  rights,  but  only  comes 
in  to  aid  their  preservation,  he  may  defend  his  person  or  property 
against  illegal  violence  by  a  force  sufficient  to  repel  that  with  which  he 
is  assailed.  This  results  clearly  from  the  right  to  property,  to  whatever 
source  we  may  refer  it,  and  from  that  of  personal  inviolability,  which 
is  (under  certain  restrictions  imposed  by  nature  itself)  indubitably  a 
natural  right.  As  the  injury  threatened  may  not  admit  of  compensa- 
tion, the  individual  may  use  force  to  prevent  the  aggression;  and  if  that 
used  by  the  assailant  endangers  his  life(a),  the  question  then  again  be- 
comes one  of  self-defence,  and  the  same  reasoning  applies  which  was 
used  to  show  the  right  of  taking  life  in  that  case.  But  where  the  indi- 
vidual attacked  can  either  by  his  own  physical  force,  or  by  the  aid  of 
the  society  to  which  he  belongs,  defend  himself  or  his  property;  when 
the  attack  is  not  of  such  a  nature  as  to  jeopardize  his  own  existence  in 
the  defence  of  them  ;  if  he  take  the  life  of  the  aggressor,  under  these 
circumstances,  he  takes  it  without  necessity,  and  consequently  without 
right.  This  is  the  extent  to  which  the  natural  law  of  self-defence 
allows  an  individual  to  go  in  putting  another  to  death.  May  any  asso- 
ciation of  individuals  inflict  it  for  any  other  cause,  and  under  any  other 
circumstances  ?  Society  has  the  right  only  to  defend  that  which  the 

(a)  The  existence  of  danger  alone,  is  not  a  sufficient  justification  by  the  English,  nor  I 
believe  by  other  laws  for  homicide ;  it  must  be  a  danger  from  which  there  is  no  other  means 
of  escape. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  119 

individuals  who  compose  it  have  a  right  to  defend,  or  to  defend  itself — 
that  is  to  say,  its  own  existence,  and  to  destroy  any  individual,  or  any 
other  society  which  shall  attempt  its  destruction.  But  this,  as  in  the 
case  of  individuals,  must  be  only  while  the  attempt  is  making,  and 
when  there  is  no  other  means  to  defeat  it.  And  it  is  in  that  sense  only 
that  I  understand  the  word  so  often  used,  so  often  abused,  so  little 
understood,  necessity.  It  exists  between  nations  during  war  ;  or  a 
nation  and  one  of  its  component  parts  in  a  rebellion  or  insurrection  j 
between  individuals  during  the  moment  of  an  attempt  against  life,  which 
cannot  otherwise  be  repelled  ;  but  between  society  and  individuals, 
organized  as  the  former  now  is,  with  all  the  means  of  repression  and 
self-defence  at  Its  command,  never.  I  come  then  to  the  conclusion,  in 
which  I  desire,  most  explicitly,  to  be  understood,  that  although  the 
right  to  punish  with  death  might  be  abstractedly  conceded  to  exist  in 
certain  societies,  and  under  certain  circumstances  which  might  make  it 
necessary ;  yet,  composed  as  society  now  is,  these  circumstances  cannot 
reasonably  be  even  supposed  to  occur — that  therefore  no  necessity,  and 
of  course,  no  right  to  inflict  death  as  a  punishment  does  exist. 

There  is  also  great  force  in  the  reasonings  which  have  been  used  to 
rebut  that,  which  founds  the  right  to  take  life  for  crimes  on  an  original 
contract,  made  by  individuals  on  the  first  formation  of  society.  First, 
that  no  such  contract  is  proved,  or  can  well  be  imagined.  Secondly, 
that  if  it  were,  it  would  be  limited  to  the  case  of  defence.  The  parties 
to  such  contract  could  only  give  to  the  society  those  rights  which  they 
individually  had ;  their  only  right  over  the  life  of  another,  is  to  defend 
their  own ;  they  can  give  that  to  society,  and  they  can  give  no  more. 
In  this  case  also,  therefore,  the  right  resolves  itself  into  that  of  doing 
what  is  necessary  for  preservation.  The  great  inquiry  then  recurs — 
is  the  punishment  of  death  in  any  civilized  society  necessary,  for  the 
preservation  either  of  the  lives  of  its  citizens  individually,  or  of  their 
social  collective  rights  ?  If  it  be  not  necessary,  I  hope  it  has  been 
proved  not  to  be  just;  and  if  neither  just  nor  necessary,  can  it  be  ex- 
pedient ?  To  be  necessary,  it  must  be  shown  that  the  lives  of  the  citi- 
zens and  the  existence  of  society  cannot  be  preserved  without  it.  But 
can  this  be  maintained  in  the  face  of  so  many  proofs  ?  Egypt,  for 
twenty  years,  during  the  reign  of  Sabaco(a) — Rome,  for  two  hundred 
and  fifty  years — Tuscany  for  more  than  twenty -five — Russia(6),  for 

(a)  Diod.  Siculus. 

(V)  As  I  use  no  historical  fact  with  a  desire  that  it  should  go  for  more  than  it  is  worth,  it 
is  but  proper  to  say,  that  I  have  never  relied  so  much  upon  the  example  of  Russia  as  upon 
the  others  to  which  I  refer;  because,  although  I  have  been  able  to  procure  no  precise  infor- 
mation ou  the  subject,  I  am  yet  inclined  to  believe,  that  the  punishment  of  the  Knout  was 
preserved  as  an  equivalent  to  that  of  death  in  many  cases,  and  to  death  in  its  most  horrid 
form.  It  is  thus  described  by  Howard  :  "  I  saw  two  criminals,  a  man  and  a  woman,  suffer 
the  punishment  of  the  knout.  They  were  conducted  from  piison  by  about  fifteen  hussars 
and  ten  soldiers.  When  they  arrived  at  the  place  of  punishment,  the  hussars  formed  them- 
selves into  a  ring  round  the  whipping  post.  The  drum  beat  a  minute  or  two,  and  then  some 
prayers  were  repeated,  the  populace  taking  off  their  hats.  The  woman  was  taken  first;  and 
after  being  roughly  stripped  to  the  waist,  her  hands  and  feet  were  bound  with  cords  to  the 
post,  a  man  standing  before  the  post  to  keep  the  cords  tight.  A  servant  attended  the  exe- 
cutioners, and  both  were  stout  men.  The  servant  first  marked  his  ground  and  struck  the 
woman  five  times  on  (he  back.  Every  stroke  seemed  to  penetrate  deep  into  the  flesh.  But 
his  master  thinking  him  too  gentle,  pushed  him  aside,  took  his  place,  and  gave  all  the  ic- 


120  INTRODUCTORY  REPORT  TO 

twenty-one,  during  the  reign  of  Elizabeth — are  so  many  proofs  to  the 
contrary.  Nay,  if  those  are  right  who  tell  you  that  the  penal  laws  of 
Spain  were  abrogated  by  the  transfer,  this  state  itself  gives  an  unan- 
swerable proof  that  no  such  necessity  exists;  for  if  those  laws  were  not 
in  force,  it  is  very  clear  that  there  were  none  imposing  the  penalty  of 
death,  from  the  time  of  the  transfer  in  December  1803,  to  the  5th  of 
May  1805,  when  our  first  penal  law  was  passed.  Yet  during  that 
period,  when  national  prejudices  ran  high,  when  one  government  had 
abandoned  and  the  other  had  not  yet  established  its  authority,  there 
was  not,  I  believe,  a  single  instance  of  murder,  or  of  any  attempt  to 
destroy  the  order  of  society.  So  that  one  argument  or  the  other  must 
be  given  up.  Either  the  Spanish  laws  existed,  or  we  ourselves  furnish 
a  proof  that  a  nation  may  exist,  in  peace,  without  the  punishment  of 
death.  Societies  have  then  existed  without  it.  In  those  societies, 
therefore,  it  was  not  necessary.  Is  there  any  thing  in  the  state  of  ours 
that  makes  it  so  ?  It  has  not,  as  far  as  I  have  observed,  been  even 
suggested.  But  if  not  absolutely  necessary,  have  its  advocates  even 
the  poor  pretext  that  it  is  convenient;  that  the  crimes  for  which  it  is 
rese/ved,  diminish  under  its  operation  in  a  greater  proportion  than 
those  which  incur  a  different  punishment  ?  The  reverse  is  the  melan- 
choly truth.  Murder,  and  those  attempts  to  murder  which  are  capi- 
tally punished,  have  increased  in  some  of  the  United  States  to  a  degree 
that  not  only  creates  general  alarm,  but  by  the  atrocity  with  which 
they  are  perpetrated,  fix  a  stain  on  the  national  character  which  it  will 
be  extremely  difficult  to  efface.  I  might  rely  for  this  fact,  on  the  gene- 
ral impression  which  every  member  of  the  body  I  address  must  have 
on  this  subject ;  but  as  the  result  is  capable  of  being  demonstrated  by 
figures,  I  pray  their  attention  to  the  tables  annexed  to  this  report,  in 
which,  although  they  are  far  from  being  as  complete  as  could  be  wished, 
they  will  see  an  increase  of  those  crimes  that  demonstrates,  if  any  thing 
can  do  it,  the  inefficiency  of  the  means  adopted  and  so  strangely  per- 
sisted in,  of  repressing  them.  The  small  number  of  executions  com- 
pared with  the  well  authenticated  instances  of  the  crime,  shows  that 
the  severity  of  the  punishment  increases  the  chance  of  acquittal ;  and 
the  idle  curiosity  which  draws  so  niany  thousands  to  witness  the  exhi- 
bition of  human  suffering  at  the  executions  ;  the  levity  with  which  the 
spectacle  is  beheld,  demonstrates  its  demoralizing  and  heart-hardening 
effects  ;  while  the  crimes  committed  at  the  very  moment  of  the  example 
intended  to  deter  from  the  commission,  shows  how  entirely  inefficient 
it  is.  One  instance  of  this  is  so  remarkable  that  I  cannot  omit  its  de- 
tail. In  the  year  1822  a  person  named  John  Lechler  was  executed  at 

maining  strokes  himself,  which  were  evidently  more  severe.  The  woman  received  twenty- 
five  and  the  man  sixty.  I  pressed  through  the  hussars,  and  counted  the  number  as  they 
were  chalked  on  a  board.  Both  seemed  but  just  alive,  especially  the  man,  who  had,  how- 
ever, strength  enough  to  receive  a  small  donation  with  some  signs  of  gratitude.  They  were 
conducted  back  to  prison  in  a  little  wagon.  I  saw  the  woman  in  a  weak  condition  some 
days  after,  but  could  not  find  the  man  any  more"  The  enlightened  successor  of  Alex- 
ander is  pursuing,  with  energy  and  zeal,  a  reform  in  the  laws  of  the  empire,  which  his  great 
predecessor  begun.  It  will,  without  any  doubt,  put  an  end  to  such  scenes  as  Howard  has 
described ;  and  this  code,  if  completed  according  to  the  humane  and  liberal  views  of  the 
emperor,  will  be  a  monument  more  glorions  than  any  that  was  ever  erected  to  a  conquering 
monarch. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  121 

Lancaster,  in  Pennsylvania,  for  an  atrocious  murder.  The  execution 
was,  as  usual,  witnessed  by  an  immense  multitude  ;  and  of  the  salutary 
effect  it  had  on  their  feelings  and  morals,  we  may  judge  from  the  fol- 
lowing extract  from  a  newspaper  printed  in  the  neighbourhood(a). 
The  material  facts,  which  are  stated  in  itj  having  been  since  confirmed 
to  me  by  unquestionable  authority: 

"It  has  long"  says  the  judicious  editor*  "  been  a  controverted  point, 
whether  public  executions,  by  the  parade  with  which  they  are  con- 
ducted, do  not  operate  on  the  vicious  part  of  the  community  more  as 
incitements  to,  than  examples  deterring  from,  crime.  What  has  taken 
place  in  Lancaster  would  lead  one  to  believe,  that  the  spectacle  of  a 
public  execution  produces  less  reformation  than  criminal  propensity. 
While  an  old  offence  was  atoned  for,  more  than  a  dozen  new  ones  were 
committed,  and  some  of  a  capital  grade.  Twenty -eight  persons  were 
committed  to  jail  on  Friday  night  for  divers  offences  at  Lancaster,  such 
as  murder,  larceny,  assault  and  battery,  &c.  besides  many  gentlemen 
lost  their  pocket-books,  where  the  pick-pockets  escaped,  or  the  jail 
would  have  overflowed. 

"  In  the  evening,  as  one  Thomas  Burns,  who  was  employed  as  a 
weaver  in  the  factory  near  Lancaster,  was  going  home,  he  was  met  by 
one  Wilson,  with  whom  he  had  some  previous  misunderstanding,  when 
Wilson  drew  a  knife  and  gave  him  divers  stabs  in  sundry  places,  which 
are  considered  mortal.  Wilson  was  apprehended  and  committed  to  jail, 
and  had  the  same  irons  put  on  him  which  had  scarcely  been  laid  off 
long  enough  by  Lechler  to  get  cold." 

A  letter,  in  answer  to  some  inquiries  I  made  on  the  subject,  adds  to 
this  information,  that  Wilson  was  one  of  the  crowd  who  left  his  resi- 
dence expressly  to  witness  the  execution  :  and  to  take  away  all  doubt 
that  the  Gazette  account  was  not  exaggerated,  that  he  has  since  been 
convicted  of  the  murder. 

I  pray  the  advocates  for  this  punishment  to  reflect  on  this  example, 
to  recollect  that,  detailed  in  my  former  report,  of  the  sale  of  forged  notes 
in  the  chamber  where  lay  the  corpse(6)  of  him  who  was  that  day  ex- 
ecuted for  a  similar  offence.  I  ask  them  seriously  to  ponder  on  them, 
on  the  numerous  other  instances  of  a  like  nature  that  must  occur  to 
them,  and  then  to  say,  whether  they  can  believe  the  punishment  of 
death  an  efficient  one  for  murder.  The  most  serious  and  intense  re- 
flection has  brought  my  mind  to  the  conclusion,  not  only  that  it  fails  in 
any  repressive  effect,  but  that  it  promotes  the  crime.  The  cause  it  is 
not  very  easy  to  discover,  and  still  more  difficult  to  explain  ;  but  I 
argue  from  effects — and  when  I  see  them  general  in  their  occurrence 

(a)  Yorktown  Gazette. 

(&)  The  following  circumstance,  which  I  find  stated  by  a  gentleman  at  a  public  meeting 
in  Southampton,  in  England,  as  having  been  detailed  by  Mr  Buxton,  is  a  stronger  case : — 

"An  Irishman,  found  guilty  of  issuing  forged  bank  notes,  was  executed,  and  his  body  de- 
livered to  his  family.  While  his  widow  was  lamenting  over  the  corpse,  a  young  man  came 
to  her  to  purchase  some  forged  notes.  As  soon  as  she  knew  his  business,  forgetting  at  once 
both  her  grief  and  the  cause  of  it,  she  raised  up  the  dead  body  of  her  husband,  and  pulled 
from  under  it  a  parcel  of  the  very  paper  for  the  circulation  of  which  he  had  forfeited  his  life. 
At  that  moment  an  alarm  was  given  of  the  approach  of  the  police;  and  not  knowing  where 
else  to  conceal  the  notes,  she  thrust  them  into  the  mouth  of  the  corpse,  and  there  (he  officers 
found  them." 

Q 


122  INTRODUCTORY  REPORT  TO 

after  the  same  event,  I  must  believe  that  event  to  be  the  efficient  cause 
which  produces  them,  although  I  may  not  be  able  to  trace  exactly  their 
connexion.  This  difficulty  is  particularly  felt  in  deducing  moral  effects 
from  physical  causes,  or  arguing  from  the  operation  of  moral  causes  on 
human  actions.  The  reciprocal  operations  of  the  mind  and  body  must 
always  be  a  mystery  to  us,  although  we  are  daily  witnesses  of  their 
effects.  In  nothing  is  this  more  apparent,  or  the  cause  more  deeply 
hidden,  than  in  that  propensity  which  is  produced  on  the  mind  to  imi- 
tate that  which  has  been  strongly  impressed  on  the  senses,  and  that 
frequently  in  cases  where  the  first  impression  must  be  that  of  painful 
apprehension.  It  is  one  of  the  earliest  developments  of  the  under- 
standing in  childhood.  Aided  by  other  impulses,  it  conquers  the  sense 
of  pain,  and  the  natural  dread  of  death.  The  tortures  inflicted  on  them- 
selves by  the  fakirs  of  India  ;  the  privations  and  strict  penance  of  some 
monastic  orders  of  Christians  ;  and  the  self-immolation  of  the  Hindoo 
widows,  may  be  attributed,  in  part  to  religion,  in  part  to  the  love  of 
distinction  and  fear  of  shame  :  but  no  one,  nor  all  of  these  united,  ex- 
cept in  the  rare  cases  of  a  hero  or  a  saint,  could  produce  such  extraordi- 
nary effects,  without  that  spirit  of  imitation  to  which  I  have  alluded. 
The  lawgiver,  therefore,  should  mark  this,  as  well  as  every  other  pro- 
pensity of  human  nature  ;  and  beware  how  he  repeats  in  his  punish- 
ments, the  very  acts  he  wishes  to  repress,  and  makes  them  examples  to 
follow  rather  than  to  avoid. 

Another  reason,  perhaps  not  sufficiently  enlarged  upon  in  the  former 
report,  to  show  that  it  cannot  be  efficient,  is  drawn  from  the  uncertainty 
of  its  infliction — an  uncertainty  which  reduces  the  chance  of  the  risk  to 
less  than  that  which  is,  in  many  instances,  voluntarily  incurred  in  many 
pursuits  of  life.  Soldiers  march  gaily  to  battle  with  the  certainty  that 
many  of  them  must  fall — those  who  commit  a  crime  punishable  with 
death,  always  proceed  with  the  hope  that  they  will  avoid  detection. 
You  find  men  to  affront  death  in  all  the  shapes  it  can  assume(a)  ;  to 
pursue  the  most  dangerous  trades;  to  undertake  the  most  desperate  en- 
terprises, for  the  most  trifling  considerations.  While  there  is  a  chance 
of  escape,  the  happy  disposition  of  our  nature  makes  us  always  believe 
it  will  be  favourable  to  us.  We  seize  the  certain  enjoyment  that  is  of- 
fered by  glory,  by  profit,  or  even  by  convenience,  and  we  trust  that 
we  shall  escape  the  uncertain  danger.  If  this  is  acknowledged  in  the 
common  pursuits  of  life,  why  should  it  be  denied  in  the  rarer  instance 

(a)  In  one  of  those  imaginary  characters,  drawn  by  the  great  modern  painter  of  human  pas- 
sions ami  pursuits,  after  his  most  felicitous  manner,  we  have  this  reckless  contempt  of  danger 
admirably  peisouified  in  the  ferocious  buccanier : 

"  Inured  to  danger's  direst  form, 

Tornade  and  earthquake,  flood  and  storm; 

Death  hath  he  seen  by  sudden  blow, 

By  wasting  plague,  by  torture  slow, 

By  mine,  or  breach,  by  steel  or  ball, 
'*  Knew  all  his  shapes,  and  scorned  ihem  all." 

Bertram  is  the  beau  ideal  of  a  pirate  ;  but  the  same  contempt  of  death  is  found,  in  a  less 
degree,  perhaps,  to  animate  other  freebooters— witness  the  cool  reply  of  one  of  them  to  a 
fellow-sufferer  on  the  wheel:—*'  Why  do  you  make  all  this  noise;  (said  he),  did  you  not 
know  that  in  our  profession  we  were  subject  to  one  malady  more  than  the  rest  of  the 
world?" 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  123 

of  crime?  The  great  error  of  our  laws  is,  an  obstinate  refusal  to 
consider  an  offender  against  them  as  moved  by  the  same  impulses, 
guided  by  the  same  motives  with  the  rest  of  the  community;  refusing, 
in  short,  to  consider  him  as  a  man.  They  suppose  him  a  demon  or  an 
idiot,  and  their  provisions  are,  accordingly,  for  the  most  part  calculated 
for  a  being  actuated  by  perversity  too  incorrigible  to  be  amended,  or 
by  folly  incapable  of  pursuing  his  own  happiness  when  the  path  is 
pointed  out.  If  we,  on  the  contrary,  were  to  frame  our  laws  for  man 
as  he  is,  should  we  consider  that  the  threat  of  dealh  would  be  an  efficient 
restraint  to  him  who  before  he  commits  the  crime,  takes  every  measure 
that  prudence  can  dictate  to  avoid  discovery  ;  and  who,  after  that,  cal- 
culates on  the  proverbial  uncertainty  of  the  law ;  while  many  of  us  are 
not  deterred  by  a  risk  which  we  cannot  flatter  ourselves  to  avoid,  for  a 
trifling  gain  or  a  momentary  gratification.  Yet  it  may  be  said,  the  good 
citizen  incurs  the  risk  of  death,  but  not  of  death  in  such  a  form  ;  he 
would  not  for  the  gratification  or  reward  you  speak  of,  incur  the  slightest 
risk  of  infamy,  although  the  greatest  that  can  be  presented  of  honour- 
able death  does  not  affright  him.  This  is  most  true,  and  this  is  most 
conclusive  in  the  argument.  It  is  not  death,  then,  that  is  feared  ;  it  is 
death  with  ignominy.  But  if  it  be  that  which  makes  death  dreadful, 
will  it  not  make  life  intolerable  ?  If  the  suffering  of  shame  cannot  be 
endured  during  the  short  interval  between  conviction  and  execution, 
how  can  it  be  borne  spread  over  a  whole  life  ? 

But  the  murderer  has  no  shame  ! — Then,  according  to  your  argu- 
ment, he  has  nothing  to  make  him  fear  death  more,  in  his  criminal  pur- 
suits, than  you  do  in  your  honest  occupation  of  inhaling  pestilence  in 
an  infected  hospital,  or  poison  in  the  manufacture  of  mercury,  or  when 
you  are  heroically  facing  it  on  the  ocean  or  in  the  field.  Why,  then, 
should  the  lesser  risk,  against  which  he  thinks  he  has  guarded,  deter 
him,  whea  the  greater  which  you  know  you  must  face,  has  no  effect 
upon  you?  Let  no  man  whose  duty  it  is  to  determine  on  this  import- 
ant measure,  evade  this  question  ;  if  he  decide  it  as  I  think  reason  and 
the  slightest  knowledge  of  human  nature  must  direct,  the  denunciation 
of  death  must  be  acknowledged  to  be  no  efficient  bar  to  the  commission 
of  the  only  crime  in  which  you  think  proper  to  employ  it. 

There  is  no  point  in  the  argument  on  which  stronger  reasoning  and 
more  persuasive  authority  could  be  produced  than  on  this,  which  has 
more  than  once  been  necessarily  introduced,  for  it  connects  itself  with 
every  other.  From  the  operation  of  the  earliest  written  laws  of  which 
history  gives  us  any  account,  down  to  the  present  day,  it  has  been  in- 
variably observed  by  all  who  would  take  the  trouble  to  think,  that  the 
inexecution  of  penal  laws  was  in  exact  proportion  to  their  severity. 
Those  of  Draco  have  become  proverbial  for  this  last  quality  ;  and  their 
cruelty  has  been  generally  supposed  a  sufficient  reason  for  their  aboli- 
tion by  Solon.  But  the  fact  is,  that  they  were  abolished,  not  so  much 
by  Solon,  as  by  the  impossibility  of  carrying  them  into  execution. 
When  the  stealing  an  apple  incurred  the  punishment  of  death,  what 
citizen  would  accuse — what  witness  would  testify — what  assembly  of 
the  people  would  convict — nay,  what  executioner  would  be  found  to 
present  the  poisoned  cup?  We  are  accordingly  told  expressly,  that 
these  laws  were  abolished,  not  by  a  formal  decree,  but  by  the  tacit  and 


124  INTRODUCTORY  REPORT  TO 

unrecorded  consent  of  the  Athenians(a).  I  make  no  quotations  from 
modern  writers  on  penal  law  to  this  point,  for  there  is  not  one  who  has 
not  given  his  testimony  in  favour  of  the  position  I  have  taken  ;  and 
yet,  by  a  most  singular  incongruity,  each  of  them  has  a  favourite  crime 
to  which  he  thinks  it  inapplicable. 

This  is  not  an  essay  to  prove  the  inutility,  the  danger,  and  if  these 
are  admitted,  the  crime  of  employing  the  punishment  of  death.  Such 
a  work  would  require  a  methodical  arrangement,  and  a  research  into 
the  first  principles  of  penal  law,  which  cannot  be  expected  from  a  mere 
explanatory  report,  in  which  heads  of  argument  are  suggested  without 
much  order  and  with  little  development,  leaving  to  the  enlightened 
minds,  to  which  they  are  addressed,  the  task  of  pursuing  to  all  their 
consequences,  the  topics  which  are  raised  for  consideration.  With 
this  understanding,  I  shall  add  a  few  more  reflections  on  this  subject, 
go  interesting  to  our  best  feelings. 

All  nations,  even  those  the  best  organized,  are  subject  to  political 
disorders,  during  wich  the  violent  passions  that  are  excited  avail  them- 
selves of  every  pretext  for  their  indulgence  ;  and  parties,  animated  with 
the  rage  of  civil  discord,  mutually  charge  each  other  with  the  worst 
intentions,  and  blackest  crimes;  but  even  in  the  hottest  warfare  of  party 
rage,  the  destruction  of  a  rival  faction  or  a  dangerous  leader,  is  seldom 
attempted  but  by  the  imputation  of  some  crime  ;  new  laws  are  not 
made  on  such  occasions,  but  the  existing  laws  are  perverted  and  mis- 
applied ;  new  punishments  are  not  invented,  but  those  already  known 
are  rigorously  enforced  against  the  innocent.  This  is  the  usual  state 
of  things  in  all  intestine  commotions,  and  even  after  they  have  assumed 
the  shape  of  civil  war,  accompanied  by  all  its  horrors,  those  who  do 
not  fall  in  the  field  are  subjected  to  something  like  a  trial  before  their 
lives  are  sacrificed.  Murder,  on  those  occasions,  arrays  itself  in  the 
spotless  ermine  of  justice,  covers  itself  with  her  robes,  mounts  her 
sacred  seat,  borrows  her  holy  language,  adopts  her  forms,  calls  its 
iniquitous  sentence  the  judgment  of  the  law  ;  and  even  when  it  stretches 
forth  its  bloody  hand  for  execution,  it  wields  her  own  weapon,  and  in- 
flicts on  the  innocent  victim  no  other  punishment  than  that  which  pre- 
vious laws  had  provided  for  guilt. 

This  is  necessary,  is  inevitable  in  cases  of  civil  discord.  What- 
ever may  be  the  projects  of  unprincipled  leaders,  the  people  who  com- 
pose their  party  and  their  strength,  must  be  made  to  believe  that  those 
to  whom  they  adhere  are  the  friends  and  supporters  of  the  laws,  and 
theretore  no  violent  open  disregard  of  established  forms  would  be 
tolerated,  even  where  the  essentials  of  justice  are  violated  ;  forms  speak 
to  the  senses,  the  substance  of  justice  to  the  understanding  only— this 
last  may  be  perverted  by  the  passions  or  imposed  on  by  falsehood  in 
fact,  or  sophistry  in  argument ;  but  the  eyes  and  ears  only  are  neces- 
sary to  observe  a  violation  of  form.  In  the  times  I  have  supposed— 
and  they  may  afflict  our  country  as  they  have  all  others— it  is  of  im- 
portance to  sanction  no  penalty  that  may  be  used  to  the  destruction  of 
your  best  c.tizens  ;  they  are  the  most  obnoxious  to  all  parties;  not 
partaking  the  violence  of  either,  they  are  suspected  by  both,  and  be- 
nrst  victims  ;  and  never  has  any  revolutionary  or  factious 

(a)  «  Draconis  leges,  quoniam  videbantur  impendio  acerbiores,  non  decreto  jussuque,  sed 
itoque  Atheniensium  consensu,  ohlilerat*  Sunf."_.#«ZMs  Gellhts,  I.  3,  c.  18. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  125 

storm  desolated  any  land,  without  the  loss  of  men  lamented  even  by 
their  mad  executioners,  after  the  calm  of  peace  had  restored  them  to 
their  senses.  Beware  then,  how  you  sharpen  the  axe,  and  prepare  the 
other  instruments  of  death,  for  the  hand  of  party  violence.  Beware 
how  you  so  accustom  the  people  to  their  use,  that  whenever  their  judg- 
ment may  be  led  astray  so  as  to  think  the  innocent  guilty,  they  may 
feel  no  shock  in  witnessing  the  last  agonies  of  a  man  whom  they  may 
afterwards  deplore  as  a  national  loss,  and  whose  death  they  may  feel 
as  a  national  disgrace.  I  dwell  upon  this,  because  I  deeply  feel  its 
force. 

History  presents  to  us  the  magic  glass  on  which,  by  looking  at  past, 
we  may  discern  future  events.  It  is  folly  not  to  read  ;  it  is  perversity 
not  to  follow  its  lessons.  If  the  hemlock  had  not  been  brewed  for  fel- 
ons in  Athens,  would  the  fatal  cup  have  been  drained  by  Socrates  ?  If 
the  people  had  not  been  familiarized  to  scenes  of  judicial  homicide, 
would  France  or  England  have  been  disgraced  by  the  useless  murder 
of  Louis  or  of  Charles  ?  If  the  punishment  of  death  had  not  been  sanc- 
tioned by  the  ordinary  laws  of  those  kingdoms,  would  the  one  have 
been  deluged  with  the  blood  of  innocence,  of  worth,  of  patriotism,  and 
science,  in  her  revolution?  Would  the  best  and  noblest  lives  of  the  other 
have  been  lost  on  the  scaffold,  in  her  civil  broils  ?  Would  her  lovely 
and  calumniated  queen,  the  virtuous  Malsherbes,  the  learned  Condor- 
cet — would  religion,  personified  in  the  pious  ministers  of  the  altar — 
courage  and  honour,  in  the  host  of  high  minded  nobles — and  science, 
in  its  worthy  representative  Lavoisier — would  the  daily  hecatomb  of  loy- 
alty and  worth — would  all  have  been  immolated  by  the  stroke  of  the 
guillotine  ;  or  Russel  and  Sidney,  and  the  long  succession  of  victims  of 
party  and  tyranny,  by  the  axe  ?  The  fires  of  Smithfield  would  not  have 
blazed ;  nor,  after  the  lapse  of  ages,  should  we  yet  shudder  at  the  name  of 
St  Bartholomew,  if  the  ordinary  ecclesiastical  law  had  not  usurped  the 
attributes  of  divine  vengeance,  and  by  the  sacrilegious  and  absurd  doc- 
trine, that  offences  against  the  deity  were  to  be  punished  with  death, 
given  a  pretext  to  these  atrocities.  Nor,  in  the  awful  and  mysterious 
scene  on  Mount  Calvary,  would  that  agony  have  been  inflicted,  if  by 
the  daily  sight  of  the  cross,  as  an  instrument  of  justice,  the  Jews  had 
not  been  prepared  to  make  it  one  of  their  sacrilegious  rage.  But  there 
is  no  end  of  the  examples  which  crowd  upon  the  memory,  to  show  the 
length  to  which  the  exercise  of  this  power,  by  the  law,  has  carried  the 
dreadful  abuse  of  it,  under  the  semblance  of  justice.  Every  nation  has 
wept  over  the  graves  of  patriots,  heroes  and  martyrs,  sacrificed  by  its 
own  fury.  Every  age  has  had  its  annals  of  blood. 

But  not  to  resort  to  the  danger  of  the  examples  in  times  of  trouble  and 
dissension,  advert  once  more  to  that  which  was  formerly  urged,  and  to 
which  I  must  again  hereafter  return — that  which  attends  its  regular 
practice  in  peace — the  irremediable  nature  of  this  punishment,  when 
error,  popular  prejudice,  or  false  or  mistaken  testimony,  has  caused  its 
infliction  to  be  ordered  upon  the  innocent ;  a  case  by  no  means  of  so 
rare  occurrence  as  may  be  imagined.  It  is  not  intended  to  enter  into 
a  detail  of  those  which  I  have  myself  collected  ;  they  are  not  few,  al- 
though they  must  necessarily  bear  a  small  proportion  to  those  which 
were  not  within  my  reach.  The  author  of  a  book  of  high(a)  authority 

(a)  Phillips  on  Evidence,  Appendix. 


126  INTRODUCTORY  REPORT  TO 

n  evidence,  has  brought  together  several  cases  which  are  wellauthen- 
icated  In  France,  in  the  short  space  of  one  year,  i  have  gathered 
from  the  public  papers  that,  seven  cases  occurred,  in  which  persons  con- 
demned to  death  by  the  primary  courts  and  assizes,  have  been  acquitted 
by  the  sentence  of  a  superior  tribunal  on  a  reversal  of  the  sentence(a).  In 
other  states  of  our  union  these  cases  are  not  uncommon.  With  us  the 
organization  of  our  courts  prevents  the  correction  of  any  error,  either 
in  law  or  in  fact,  by  a  superior  tribunal.  But  every  where  it  is  matter 
of  surp'rise  that  any  cases  should  be  discovered  of  these  fatal  mistakes. 
The  unfortunate  subjects  of  them  are,  for  the  most  part,  friendless  ; 
generally  their  lives  must  have  been  vicious,  or  suspicion  would  not 
have  fastened  on  them  ;  and  men  of  good  character  sometimes  think  it 
disreputable  to  show  an  interest  for  such  men,  or  to  examine  critically 
into  the  circumstances  of  their  case.  They  are  deserted  by  their  con- 
nexions, if  they  have  any;  friends  they  have  none.  They  are  con- 
demned— executed — forgotten  ;  and  in  a  few  days,  it  would  seem, 
that  the  same  earth  which  covered  their  bodies  has  buried  all  re- 
membrance of  them,  and  all  doubts  of  their  innocence  or  guilt.  It  is, 
then,  not  unreasonable  to  suppose,  that  many  more  such  cases  have 
existed  than  those  that  have  fortuitously  been  brought  to  light(6). 

(a)  Is  not  this  a  striking  lesson  to  teach  us  the  necessity  of  providing  the  means  of  cor- 
recting error  in  criminal  as  well  as  in  civil  cases — of  protecting  life  and  liberty  as  well   as 
properly  ?    The  importance  of  the  subject  may,  perhaps,  excuse  my  referring  once  more  to 
the  bill  formerly  offered  to  the  general  assembly  by  the  reporter. 

(b)  Let  me  give  the  substance  of  this  objection  to  capital  punishment  in  the  words  of  a 
man  to  whom  the  science  of  legislation  owes  the  great  attention  that  is  now  paid  to  its  true 
principles,  and  to  whom  statues  would  be  raised  if  the  benefactors  of  mankind  were  as  much 
honoured  as  the  oppressors  of  nations  : — "  The  same  objection,"  he  says,  "  lies  against  all 
afflictive  penalties,  that  they  cannot  be  remedied,  but  they  may  be  compensated.   For  death 
alone  there  is  no  resource.    There  is  no  man,  ever  so  little  versed  in  criminal  procedure, 
who  does  not  feel  a  kind  of  terror,  when  he  thinks  on  how  slight  a  circumstance  the  life  of 
a  man  under  accusation  for  a  capital  crime,  depends,  and  who  does  not  recollect  instances 
in  which  individuals  have  owed  their  lives  to  some  extraordinary  circumstance,  accidently 
brought  to  light  at  the  critical  moment  of  danger.     The  chances  of  danger  are,  without 
doubt,  very  different,  according  to  the  different  systems  of  procedure  .  .  .  but  are  there  any 
judiciary  forms,  which  can  guard,  in  perfect  security,  against  the  snares  of  falsehood  and  the 
illusions  of  error?  No  !  absolute  security  is  a  point  of  perfection  which  may  be  approached 
much  nearer  than  has  yet  been  done  without  reaching  it ;  for  witnesses  may  deceive,  or  be 
deceived  ;  the  number  of  those  who  testify  to  the  same  fact  is  not  an  infallible  safeguard  ; 
and  as  to  proofs  which  are  drawn  from  circumstantial  facts — circumstances  the  most  conclu- 
sive, in  appearance— those  which  it  would  seem  impossible  to  explain,  but  on  the  supposU 
tion  of  guilt— even  these  may  be  the  effect  of  chance,  or  of  preconcerted  circumstances, 
arranged  by  interested  persons.    The  only  proof  which  would  appear  to  brirtg  complete  con- 
viction, the  free  confession  of  the  accused,  besides  its  being  very  rare,  does  not  always  give 
absolute  certainty— since  men  have  been  found,  as  in  the  case  of  witchcraft,  to  confess 
themselves  guilty  of  a  crime  that  it  was  impossible  to  commit.    Those  are  not  imaginary 
alarms,  drawn  from  simple  possibilities;  there  are  no  criminal  records  that  do  not  present 
examples  of  these  fatal  mistakes— and  those  which,  by  a  concurrence  of  singular  events, 
have  become  known,  give  us  reason  to  suspect  many  innocent  victims  unknown.     It  may 
even  be  observed,  that  the  cases  in  which   the  word  evidence  is  most  frequently  used,  are 
those  in  which  the  testimony  is  most  doubtful.     When  the  alleged  crime  is  one  of  those 

J  the  most  antipathy,  or  heightens  the  spirit  of  party,  the  witnesses  uncon- 
sciously become  accusers;  they  a,e  no  more  than  the  echoes  of  public  clamour ;  the  fer- 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  127 

Would  you  retain  a  punishment  that,  in  the  common  course  of  events, 
must  be  irremediably  inflicted,  at  times,  on  the  innocent,  even  if  it  se- 
cured the  punishment  of  the  guilty  ?  But  that  is  far  from  being  the 
effect.  While  you  cannot,  in  pacticular  cases,  avoid  its  falling  upon 
innocence,  that  very  cause,  from  the  imperfection  of  all  testimony, 
will  make  it  more  favourable  to' the  escape  of  the  guilty;  and  the  maxim, 
so  often  quoted  on  this  occasion(a),  will  no  longer  be  perverted  in  order 
to  effect  a  compromise  between  the  conscience  of  the  juror  and  the  se- 
verity of  the  law,  when  your  punishments  are  such  only  as  admit  of 
remission  when  they  have  been  found  to  be  unjustly  imposed. 

Other  arguments,  not  less  forcible — other  authorities,  equally  respect- 
able, might  be  adduced  to  show  the  ill  effects  of  this  species  of  punish- 
ment ;  but  the  many  topics  that  are  still  before  me  in  this  report, 
oblige  me  to  pursue  this  one  no  further  than  to  inquire,  what  good  can 
be  expected,  or  what  present  advantage  is  derived  from  retaining  this 
punishment  ?  Our  legislation  surrendered  it  without  a  struggle,  in  all 
cases,  at  first,  but  murder,  attempt  to  murder,  rape  and  servile  insurrec- 
tion; and  afterwards  extended  it  to  a  species  of  aggravated  burglary (b). 
Now  as  these  cases  are  those  only  in  which  it  has  been  deemed  expe- 
dient to  retain  this  punishment ;  as  it  has  been  abandoned  in  all  others, 
the  serious  inquiry  presents  itself,  why  it  was  retained  in  these,  or 
why  abandoned  in  the  others  ?  Its  inefficiency,  or  some  of  the  other 
objections  to  it,  must  have  been  apparent  in  all  the  other  numerous  of- 
fences in  which  it  has  been  dispensed  with,  or  it  would  certainly  have 
been  retained,  or  restored.  Taking  this  acknowledged  inefficiency,  in 
the  numerous  cases,  for  the  basis  of  the  argument,  let  us  inquire  whether 
there  is  any  thing  which  makes  it  peculiarly  adapted  to  the  enumerated 
crimes,  which  it  is  unjust  or  inexpedient  to  apply  to  any  of  the  others? 
We  have  three  modes  of  discovering  the  truth  on  this  subject :  by 
reasoning  from  the  general  effects  of  particular  motives  on  human  ac- 
tions; by  analogy,  or  judging  from  the  effects  in  one  case  to  the  proba- 
ble effects  in  another ;  or  by  experience  of  the  effect  on  the  particular 
case.  The  general  reasoning  upon  the  justice  and  efficacy  of  the  punish- 
ment will  not  be  repeated  here,  but  it  is  referred  to  as  being  conclusive 

mentation  increases  by  its  own  action,  and  it  is  no  longer  permitted  to  doubt.  It  was  a  frenzy 
of  this  kind  which  first  seized  the  people,  and  was  afterwards  communicated  to  the  judges 
in  the  unfortunate  affair  of  Galas." — Theory  of  Rewards  and  Punishments,  Bentham. 

(a)  That  it  is  better  ten  guilty  should  escape  than  one  innocent  suffer,  is  invariably  given 
to  the  jury  as  a  maxim  in  all  capital  cases,  depending  on  circumstantial  evidence  ;  and  where 
there  are  no  irritating  causes,  it  invariably  succeeds", 

(6)  Act  of  20th  March  1818,  sec.  3.  Breaking  into  a  dwelling  house  in  the  night 
time,  with  intent  to  steal,  &c.  so  far  this  crime  was  already  punishable  under  the  act  of 
1805.  The  severe  punishment  of  death  is  added,  if  any  person  was  lawfully  within  the 
house,  and  if  the  offender  was  armed  with  a  dangerous  weapon  ;  or  if  not  so  armed,  if  he- 
armed  himself  in  the  house,  or  made  an  assault  on  the  person  then  being  in  the  house 
lawfully.  If  the  occupier  of  the  house  was  not  there  lawfully,  the  offender  escapes  death ! 
What  a  circumstance  on  which  to  hang  the  life  of  a  man.  If  the  tenant  has  a  good  lease, 
the  robber  is  hanged,  if  he  is  an  intruder,  ho  escapes  death.  Again,  if  the  robber  meets 
nobody  in  the  house  and  steals  ten  thousand  dollars,  he  only  suffers  imprisonment ;  but 
if  he  sees  a  servant,  and  shakes  his  fist  at  him,  he  is  hanged,  although  he  should  steal 
nothing.  If  he  breaks  in  without  weapons,  and  rifles  the  house  of  all  its  contents,  he  is 
imprisoned  only  ;  if  he  finds  a  fowling-piece,  and  carries  it  off  in  his  hand,  he  is  hanged. 
Another  specimen  of  the  laws  which  nothing  but  presumption  could  attempt  to  amend. 


128  INTRODUCTORY  REPORT  TO 

as  to  all  offences,  and  admitting  of  no  exception  that  would  apply  ttf 
murder,  or  either  of  the  three  other  cases  in  which  our  laws  inflict  it. 
If  \ve  reason  from  analogy,  we  should  say  the  only  argument  ever 
used  in  favour  of  death  as  a  punishment  is,  that  the  awful  example  it 
presents  will  deter  from  the  commission  of  the  offence :  but  by  your 
abandonment  of  it  in  all  cases  but  these,  you  acknowledge  it  has  no 
efficacy  there.  Analogy,  therefore,  would  lead  us  to  the  conclusion, 
that  if  it  was  useless  in  the  many  cases,  it  would  be  so  in  the  few.  But 
it  is  acknowledged,  that  no  analogy,  or  any  other  mode  of  reasoning  ; 
no  theory,  however  plausible,  ought  to  influence,  when  contradicted  by 
experience.  You  have  tried  this  remedy,  and  found  it  ineffectual !  The 
crimes  to  which  you  have  applied  it,  are  decreasing  in  number  and 
atrocity  under  its  influence  !  If  so,  it  would  be  imprudent  to  make  any 
change,  even  under  the  most  favourable  prospects  that  the  new  system 
would  be  equally  efficient.  Let  us  try  it  by  this  test.  For  the  first 
three  years  after  the  transfer  of  the  province,  there  was  not  a  single 
execution  or  conviction  for  either  of  these  crimes.  In  the  course,  how- 
ever, of  the  first  six  years,  four  Indians,  residing  within  the  limits  of 
the  state,  made  an  attack  on  some  of  the  settlers,  and  were  either  given 
up  by  the  tribe,  or  arrested  and  condemned,  and  two  were  executed  as 
for  murder,  and  one  negro  was  condemned  and  executed  for  insurrec- 
tion. In  the  next  six  years  there  were  ten  convictions;  in  the  succeed- 
ing four,  to  the  month  of  January  1822,  fourteen  ;  so  that  we  find  the 
number  of  convictions  for  the  enumerated  crimes  have  nearly  doubled 
in  every  period  of  six  years,  in  the  face  of  this  efficient  penalty.  But 
the  population  of  the  state  doubles  only  once  in  twenty  years  ;  there- 
fore, the  increase  of  this  crime  progresses  in  a  ratio  of  three  to  one,  to 
that  of  the  population;  and  we  should  not  forget,  in  making  this  calcu- 
lation, the  important  and  alarming  fact,  that  numerous  instances  of 
homicide,  and  attempts  to  kill,  occur,  which  are  rarely  followed  by 
prosecution,  and  more  rarely  still  by  conviction.  I  mean,  all  that  class 
that  have  their  origin  in  a  mistaken  sense  of  honour,  including  not  only 
the  lives  sacrificed  to  the  tyranny  of  public  opinion  in  duels,  but  those 
less  excusable  and  increasing  cases  of  wounds  and  death,  inflicted  in 
atonement  for  some  injury  offered  to  personal  dignity.  Under  the 
statute  against  stabbing,  I  find  but  three  convictions  up  to  the  year  1822; 
one  instance  of  rape,  to  the  same  period  ;  and  what  is  somewhat  singu- 
lar, not  a  single  instance  of  burglary  from  1805  until  1820,  in  which 
year,  and  the  succeeding  one,  there  were  two  cases,  just  two  years  after 
it  was  made  a  capital  crime.  What  are  we  to  conclude  from  this  state- 
ment ?  First,  I  think,  that,  of  burglary,  one  of  the  crimes  to  which 
capital  punishment  is  annexed,  fifteen  years'  experience,  (during  which 
there  was  not  a  single  conviction,  and  as  far  as  is  known,  not  a  single 
indictment  under  the  law  which  denounced  imprisonment  as  the  penal- 
ty) ought  to  have  convinced  us,  that  the  severer  punishment  was  not 
necessary,  while  the  two  convictions  which  so  soon  succeeded  the  pro- 
mulgation of  that  law,  are  strong  testimony  that  the  punishment  of 
death  is  not  an  effectual  remedy  for  the  evil.  As  to  rape,  that  its  rare 
occurrence  is  much  more  properly  to  be  attributed  to  the  manners  of 
the  age  than  to  any  fear  of  the  punishment  annexed  ;  for  if  that  were 
the  efficient  cause,  we  should  certainly  find  it  at  least  as  powerful  in 
the  case  of  murder,  a  crime  to  which  the  offender  is  not  stimulated  as 
in  the  former  case,  by  the  strongest  sensual  appetite. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  129 

, Besides,  this  is  not  the  strong  hold  of  those  who  argue  in  favour  of 
capital  punishment.  Driven  from  every  other  ground,  they  defend  it 
as  peculiarly  applicable  to  the  case  of  murder.  The  slow  abandonment 
of  it  for  oilier  offences,  is  a  proof  of  the  gradual  advance  of  true  princi- 
ples, and  the  pertinacity  with  which  it  is  adhered  to  in  this,  shows  the 
force  of  early  impressions  and  inveterate  prejudice,  even  in  the  most 
enlightened  minds  :  yet  that  prejudice  must  in  time  yield  to  the  evi- 
dence which  the  practical  results  which  have  attended  this  infliction — 
results  which  show,  almost  to  demonstration,  that  the  public  exhibition 
of  homicide,  directed  by  the  sacred  voice  of  the  law,  so  far  from  re- 
pressing, does  but  encourage  it,  in  private  quarrels.  It  is  commonly 
advocated  on  the  principle  of  vindictive  justice(a),  and  can  be,  with  a 
due  regard  to  facts,  on  no  other.  The  murderer  deserves  death  !  He 
that  sheds  man's  blood,  by  man  shall  his  blood  be  shed  !  Blood  for 
blood  !  These  are  the  exclamations  that  are  used  instead  of  argument. 
Such  sentiments,  combined  with  the  spectacle  of  legal  revenge  which 
they  dictate,  can  produce  but  one  effect.  Half  the  odium  and  horror 
of  taking  human  life  is  lost,  by  the  example  of  seeing  it  made  a  public 
duty,  while  the  motives  are  sanctified  which  are  but  too  apt  to  justify 
it  in  the  mind  of  an  irritated  individual,  who  magnifies  the  injury  he 
has  received,  overlooks  the  provocation  he  gave,  and  thinks  himself 
excusable  in  doing,  to  satisfy  his  passions,  that  which  public  justice 
does  from  the  same  motive,  revenge.  The  sensation  of  horror  with 
which  we  see  a  human  being  suffering  a  violent  death,  would  certainly 
be  increased,  if  the  hand  of  justice  was  never  employed  in  the  unholy 
work;  and  private  vengeance  would  be  checked  by  the  laws,  when  they 
no  longer  encouraged  it  by  their  example. 

But  however  this  vindictive  feeling  may  betray  itself  in  the  warmth 
of  conversation,  it  is  not  brought  forward  in  any  serious  argument;  there 
it  is  too  universally  exploded.  What  then  is  said  ?  That  it  is  a  punish- 
ment proportioned  to  the  crime;  that,  as  murder  is  the  highest  of  all  of- 
fences, death,  the  greatest  of  all  punishments,  ought  to  be  applied  to 
it.  But  why  ought  it  to  be  so  applied  ?  To  apportion  the  punishment 
to  the  offence,  does  not  mean  to  make  the  culprit  suffer  the  same  quan- 
tity of  evil  which  he  inflicted  by  his  crime  ;  that  would  be  both  im- 
possible and  unjust.  It  means,  that  the  punishment  should  be  such  as 
to  deter  from  the  commission  of  the  crime,  but  no  greater.  If,  then, 
death  has  not  this  effect,  why  ought  it  to  be  applied  ?  But  that  it  has 
not  this  effect,  is  shown  by  reasoning  and  by  fact.  Why  then  will  you 
continue  to  apply  it  ?  Pressed  by  this  inquiry,  we  have  the  same  eter- 
,nal  answer — murder  deserves  death.  Out  of  this  circle  no  reasoning 
can  drive  them.  Sometimes,  indeed,  we  are  asked,  are  you  sure  that 
if  we  give  up  this  punishment,  your  substitute  will  prove  effectual?  If 

(a)  I  had  once  a  conversation  with  an  exalted  magistrate,  a  man  of  high  attainments 
and  great  liberality,  on  the  abolition  of  this  punishment.  He  acceded  to  the  propriety 
of  the  measure,  in  all  cases  but  murder  ;  because  of  the  difficulty  of  keeping  the  offender, 
and  the  severity  of  solitary  confinement,  which  was  proposed  to  be  substituted.  But  when 
these  two  objections  were,  as  I  thought,  satisfactorily  answered,  he  replied  by  one  of  the 
exclamations  used  in  the  text,  and  added,  very  frankly — "  I  must  confess  that  there  is 
some  little  feeling  of  revenge  at  the  bottom  of  my  opinion  on  this  subject."  If  all  other 
reasoners  were  equally  candid,  there  would  be  less  difficulty  in  establishing  true  doc- 
trines. 

R 


130  INTRODUCTORY  REPORT  TO 

you  mean  so  effectual  as  to  eradicate  the  crime,  I  answer,  no  !     But  I 
n  is  sure  as  experience  and  analogy,  and  reasoning  united,  can  make 

alll    a^   PM»»P   «'  TTT«       ,     •       • .  r  *i        TTTi  T 

me,  that  it  will  be  more  effectual.  What  is  it  we  fear?  Why  do  we 
hes'itate  ?  You  know,  you  cannot  deny,  that  the  fear  of  the  gallows 
does  not  restrain  from  murder.  We  have  seen  a  deliberate  murder 
committed  in  the  very  crowd  assembled  to  enjoy  the  spectacle  of  a 
murderer's  death;  and  do  we  still  talk  of  its  force  as  an  example?  In 
defiance  of  your  menaced  punishment,  homicide  stalks  abroad  and  raises 
its  bloody  hand  at  noon-day  in  your  crowded  streets;  and  when  arrested 
in  its  career,  takes  shelter  under  the  example  of  your  laws,  and  is  pro- 
tected by  their  very  severity,  from  punishment.  Try  the  efficacy  of 
milder  punishments;  they  have  succeeded.  Your  own  statutes,  all  those 
of  every  state  in  the  union,  prove  that  they  have  succeeded,  in  other 
offences;  try  the  great  experiment  on  this  also.  Be  consistent;  restore 
capital  punishments  in  other  crimes,  or  abolish  it  in  this.  Do  not  fear 
that  the  murderers  from  all  quarters  of  the  earth,  seduced  by  the  mild- 
ness of  your  penal  code,  will  choose  this  as  the  theatre  of  their  exploits. 
On  this  point  we  have  a  most  persuasive  example.  In  Tuscany,  as  we 
have  seen,  neither  murder  nor  any  other  crime  was  punished  with  death, 
for  more  than  twenty  years,  during  which  time  we  have  not  only  the 
official  declaration  of  the  sovereign,  that  "all  crimes  had  diminished, 
and  those  of  an  atrocious  nature  had  become  extremely  rare  ,"  but  the 
authority  of  the  venerable  Franklin,  for  these  conclusive  facts  ;  that  in 
Tuscany  where  murder  was  not  punished  with  death,  only  five  had 
been  committed  in  twenty  years  ;  while  in  Rome,  where  that  punish- 
ment is  inflicted  with  great  pomp  and  parade,  sixty  murders  were 
committed  in  the  short  space  of  three  months,  in  the  citv  and  its 
vicinity(a).  "  It  is  remarkable,"  he  adds  to  this  account  "  that  the  man- 

(a)  If  ever  any  philosophy  deserved  the  epithets  of  useful  and  practical,  it  was  that  of 
Dr  Franklin.  His  opinions  must  have  weight,  not  only  from  his  character,  but  from  the 
simple,  intelligible  reasoning  by  which  they  are  supported.  What  says  this  venerable  and 
irreproachable  witness  in  the  cause  of  humanity,  which  we  are  now  pleading? — "  I  sus- 
pect the  attachment  to  death,  as  a  punishment  for  murder,  in  minds  otherwise  enlightened 
upon  the  subject  of  capital  punishments,  arises  from  a  false  interpretation  of  a  passage  in 
the  old  testament,  and  that  is—'  He  that  sheds  the  blood  of  man,  by  man  shall  his  blood 
be  shed.'  This  has  been  supposed  to  imply,  that  blood  could  only  be  expiated  by  blood. 
But  I  am  disposed  to  believe,  with  a  late  commentator  on  this  text*  of  scripture,  that  it 
IB  rather  a  prediction  than  a  law.  The  language  of  it  is  simply,  that  such  is  the  folly 
and  depravity  of  man,  that  murder,  in  every  age,  shall  beget  murder.  Laws,  therefore, 
which  inflict  death  for  murder,  are,  in  my  opinion,  as  unchristian  as  those  which  justify 
or  tolerate  revenge ;  for  the  obligations  of  Christianity  upon  individuals,  to  promote  re- 
pentance, to  forgive  injuries,  and  to  discharge  the  duties  of  universal  benevolence,  are 
equally  binding  upon  states. 

"  The  power  over  human  life  is  the  sole  prerogative  of  him  who  gave  it.    Human 

I  hope  I  shall  not  offend  any  one  by  taking  the  liberty  to  put  my  own  construction 

rated  passage,  and  to  inquire,  why  it  should  be  deemed  a  precept  at  all  ?     To 

confess,  a  appears  to  contain  nothing  more  than  a  declaration  of  what  will  gene- 

:  and  in  this  view  to  stand  exactly  upon  the  same  ground  with  such  passages 

Tl~;',?f,  ',hat  lea<Ieth  into  "Pt^ity,  shall  go  into  captivity'-'  He  that  t«keth 

d,  shall  fall  by  the  sword.'    The  form  of  expression  is  precisely  the  same  in  both 

n  may  they  not  all  be  interpreted  in  the  same  manner,  and  considered,  not 

8  commands,  but  as  denunciations?  and  if  so,  the  magistrate  will  no  more  b,>  bound  by  the 

text  in  Genesis,  to  pumsh  murder  with  death,  than  he  will  by  the  text  in  the  Revelations,  to 

•ell  every  Guiuea  captain  to  our  West  India  planters."— Rev    W  Turner 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  131 

ners,  principles,  and  religion  of  the  inhabitants  of  Tuscany,  and  of 
Rome,  are  exactly  the  same.  The  abolition  of  death  alone,  as  a  punish- 
ment for  murder,  produced  this  difference  in  the  moral  character  of  the 
two  nations."  From  this  it  would  appear,  rather  that  the  murderers 
of  Tuscany  were  invited,  by  the  severe  punishments  in  the  neighbour- 
ing territories  of  Rome,  than  that  those  of  Rome  were  attracted  into 
Tuscany  by  their  abolition.  We  have  nothing  to  apprehend,  then,  from 
this  measure  ;  and  if  any  ill  effects  should  follow  the  experiment,  it  is 
but  too  easy  to  return  to  the  system  of  extermination. 

One  argument,  the  ferocious  character  impressed  on  the  people  by 
this  punishment,  which  was  insisted  on  in  the  first  report,  has  been  so 
strongly  illustrated  by  a  subsequent  event  in  Pennsylvania,  that  I  can- 
not omit  stating  it.  After  the  execution  of  Lechler  had  gratified  the 
people  about  York  and  Lancaster  with  the  spectacle  of  his  death,  and 
had  produced  its  proper  complement  of  homicide  and  other  crimes, 
a  poor  wretch  was  condemned  to  suffer  the  same  fate,  for  a  similar  of- 
fence, in  another  part  of  the  state,  where  the  people  had  not  yet  been 
indulged  with  such  a  spectacle.  They,  also,  collected  by  thousands  and 

laws,  therefore,  are  in  rebellion  against  this  prerogative,  when  they  transfer  it  to  human 
hands. 

"  If  society  can  be  secured  from  violence  by  confining  the  murderer,  so  as  to  prevent 
a  repetition  of  his  crime,  the  end  of  extirpation  will  be  answered.  In  confinement  he 
may  be  reformed;  and  if  this  should  prove  impracticable,  he  may  be  restrained  for  a  term 
of  years  that  will  probably  be  co-eval  with  his  life. 

"  There  was  a  time  when  the  punishment  of  captives  with  death  or  servitude,  and  the 
indiscriminate  destruction  of  peaceable  husbandmen,  women,  and  children,  were  thought 
to  be  essential  to  the  success  of  war,  and  the  safety  of  states.  But  experience  has  taught 
us  that  this  is  not  the  case ;  and  in  proportion  as  humanity  has  triumphed  over  these 
maxims  of  false  policy,  wars  have  been  less  frequent  and  terrible,  and  nations  have 
enjoyed  longer  intervals  of  internal  tranquillity.  The  virtues  are  all  parts  of  a  circle. 
Whatever  is  humane,  is  wise  ;  whatever  is  wise,  is  just ;  and  whatever  is  wise,  just,  and 
humane,  will  be  found  to  be  the  true  interest  of  states,  whether  criminals  or  foreign 
enemies  are  the  subject  of  their  legislation. 

"  For  the  honour  of  humanity  it  can  be  said,  that  in  every  age  and  country,  there  have 
been  found  persons  in  whom  uncorrupted  nature  has  triumphed  over  custom  and  law. 
Else,  why  do  we  hear  of  houses  being  abandoned  near  to  places  of  public  execution  ? 
Why  do  we  see  doors  and  windows  shut  the  days  and  hours  of  criminal  executions  ? 
Why  do  we  hear  of  aid  being  secretly  afforded  to  criminals  to  mitigate  or  elude  the  se- 
verity of  their  punishments  ?  Why  is  the  public  executioner  of  the  law  a  subject  of  such 
general  detestation  ?  These  things  are  latent  struggles  of  reason,  or  rather,  the  secret 
voice  of  God  himself,  speaking  in  the  human  heart,  against  the  folly  and  cruelty  of  public 
punishments. 

"  I  shall  conclude  this  inquiry  by  observing,  that  the  same  false  religion  and  philosophy 
which  once  kindled  the  fire  on  the  altar  of  persecution,  now  dooms  the  criminal  to  public 
ignominy  a"nd  death.  In  proportion  as  the  principles  of  philosophy  and  Christianity  are 
understood,  they  will  agree  in  extinguishing  the  one  and  destroying  the  other.  If  these 
principles  continue  to  extend  their  influence  upon  government,  as  they  have  done  for 
some  time  past,  I  cannot  help  entertaining  a  hope,  that  the  time  is  not  very  distant,  when 
the  gallows,  the  pillory,  the  stocks,  the  whipping-post,  and  the  wheel-barrow  (the  usual 
engines  of  public  punishment),  will  be  connected  with  the  history  of  the  rack  and  the 
stake,  as  marks  of  the  barbarity  of  ages  and  countries,  and  as  melancholy  proofs  of  the 
feeble  operation  of  reason  and  religion  on  the  human  mind." — Inquiry  upon  Public 
Punishments. 


132  INTRODUCTORY  REPORT  TO 

lens  of  thousands.  The  victim  was  brought  out.  All  the  eyes  in  the 
livin«  mass  that,  surrounded  the  gibbet,  were  fixed  on  his  countenance, 
and  t'Tu'v  waited  with  strong  desire,  the  expected  signal  for  launching 
him  into  eternity.  There  was  a  delay.  They  grew  impatient ;  it  was 
prolonged,  and  they  were  outrageous  ;  cries  like  those  which  precede 
the  tardy  rising  of  the  curtain  in  a  theatre  were  heard.  Impatient  for 
the  delight  they  expected  in  seeing  a  fellow  creature  die,  they  raised  a 
ferocious  cry.  But  when  it  was  at  last  announced  that  a  reprieve  had 
left  them  no  hope  of  witnessing  his  agonies,  their  fury  knew  no  bounds; 
and  the  poor  maniac,  for  it  was  discovered  that  he  was  insane,  was  with 
difficulty  snatched  by  the  officers  of  justice  from  the  fate  which  the 
most  violent  among  them  seemed  determined  to  inflict(«).  This  is  not 
an  overcharged  picture  ;  the  same  savage  feeling  has  been  more  than 
once  exhibited  in  different  parts  of  the  union,  and  will  always  be  pro- 
duced by  public  executions,  unless  it  is  replaced  by  the  equally  danger- 
ous feeling  of  admiration  and  interest  for  the  sufferer(A).  Which  of  the 
two  is  to  prevail,  depends  on  circumstances  totally  out  of  the  power  of 
the  lawgiver  or  the  judge  to  foresee,  or  control  ;  but  by  the  indulgence 
of  either  feeling,  every  good  end  of  punishment  is  totally  defeated. 

I  cannot,  I  ought  not,  to  dismiss  this  subject  without  once  more 
pressing  on  the  most  serious  consideration  of  the  legislature,  an  argu- 
ment which  every  new  view  of  it  convinces  me  is  important  ;  and  if 
we  lisfen  to  the  voice  of  conscience,  conclusive:  the  irremediable  na- 
ture of  this  punishment.  Until  men  acquire  new  faculties,  and  are 
enabled  to  decide  upon  innocence  or  guilt  without  the  aid  of  fallible 
and  corruptible  human  evidence,  so  long  will  the  risk  be  incurred  of 
condemning  the  innocent.  Were  the  consequence  felt  as  deeply  as  it 
ought  to  be,  would  there  be  an  advocate  for  that  punishment,  which, 
applied  in  such  case,  has  all  the  consequences  of  the  most  atrocious 
murder  to  the  innocent  sufferers — worse  than  the  worst  murderer!  He 
stabs,  or  strikes,  or  poisons,  and  the  victim  dies — he  dies  unconscious 
of  the  blow — -without,  being  made  a  spectacle  to  satisfy  ferocious  cu- 
riosity, and  without  the  torture  of  leaving  his  clearest  friends  doubtful 
of  his  innocence,  or  seeing  them  abandon  him  under  the  conviction 
of  his  guilt;  he  dies,  and  his  death  is  like  one  of  those  inevitable  chances 
to  which  all  mortals  are  subject ;  his  family  are  distressed,  but  not  dis- 
honoured; his  death  is  lamented  by  his  friends,  and,  if  his  life  deserved 
it,  honoured  by  his  country.  But  the  death  inflicted  by  the  laws,  the 

(a)  This  disgraceful  scene  took  place  at  Orwigsburgh.  The  wretched  madman  who  was 
BO  near  suffering,  was  named  Zimmerman.  I  have  the  details  from  a  gentleman  of  the 
first  respectability  in  Pennsylvania;  my  informant  adds  to  his  account  of  this  transac- 
tion— "  Executions  in  this  state  are  scenes  of  riot  and  every  species  of  wickedness ; 
twenty,  thirty,  and  forty  thousand  persons  have  been  in  attendance  on  such  occasions. 
In  country  parts,  two  and  even  three  days  are  employed  in  the  merry-making,  much  after 
the  manner  of  fairs  in  former  times." 

(6)  The  tendency  of  public  executions  at  times  to  elevate  the  sufferer  to  the  honours 
of  saintship,  an.l  lose  the  detestation  due  to  his  crime  in  admiration  for  the  piety  of  the  " 
new  convert,  is  not  confined  to  the  United  States.  The  scene  described  in  the  first  re- 
port, of  the  execution  of  the  mail  robbers  at  Baltimore,  has  been  represented  in  other 
countries.  A  note  to  that  part  of  the  report  in  a  German  translation,  says—"  One  would 
think  that  the  author  was  an  oye-witness  to  the  execution  of  the  murderer  Jonas  in  this 
place— so  exactly  is  the  scene  described." 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  133 

murder  of  the  innocent  under  its  holy  forms,  has  no  such  mitigating 
circumstances.  Slow  in  its  approach,  uncertain  in  its  stroke,  its  victim 
feels  not  only  the  sickness  of  the  heart  that  arises  from  the  alternation 
of  hope  and  fear,  until  his  doom  is  pronounced,  but  when  that  becomes 
inevitable;  alone,  the  tenant  of  a  dungeon  during  every  moment  that 
the  cruel  lenity  of  the  law  prolongs  his  life,  he  is  made  to  feel  all  those 
anticipations,  worse  than  a  thousand  deaths.  The  consciousness  of  in- 
nocence, that  which  is  our  support  under  other  miseries,  is  here  con- 
verted into  a  source  of  bitter  anguish,  when  it  is  found  to  be  no  pro- 
tection from  infamy  and  death  ;  and  when  the  ties  which  connected 
him  to  his  country,  his  friends,  his  family,  are  torn  asunder,  no  con- 
soling reflection  mitigates  the  misery  of  that  moment.  He  leaves  un- 
merited infamy  to  his  children;  a  name  stamped  with  dishonour  to  their 
surviving  parent,  and  bows  down  the  grey  heads  of  his  ow,n  with  sorrow 
to  the  grave.  As  he  walks  from  his  dungeon,  he  sees  the  thousands 
who  have  come  to  gaze  on  his  last  agony;  he  mounts  the  fatal  tree,  and 
a  life  of  innocence  is  closed  by  a  death  of  dishonour.  This  is  no  pic- 
ture of  the  imagination.  Would  to  God  it  were  !  Would  to  God,  that  if 
death  must  be  inflicted,  some  sure  means  might  be  discovered  of  mak- 
ing it  fall  upon  the  guilty.  These  things  have  happened.  These  legal 
murders  have  been  committed  !  and  who  were  the  primary  causes  of 
the  crime  ?  Who  authorized  a  punishment,  which  once  inflicted,  could 
never  be  remitted  to  the  innocent  ?  Who  tied  the  cord,  or  let  fall  the 
axe  upon  the  guiltless  head  ?  Not  the  executioner,  the  vile  instrument 
who  is  hired  to  do  the  work  of  death;  not  the  jury  who  convict,  or  the 
judge  who  condemns;  not  the  law  which  sanctions  these  errors,  but  the 
legislators  who  made  the  law  ;  those  who,  having  the  power,  did  not 
repeal  it.  These  are  the  persons  responsible  to  their  country,  their 
consciences,  and  their  God.  These  horrors  not  only  have  happened, 
but  they  must  be  repeated  :  the  same  causes  will  produce  the  same  ef- 
fects. The  innocent  have  suffered 'the  death  of  the  guilty;  the  innocent 
will  suffer;  We  know  it.  The  horrible  truth  stares  us  in  the  face.  We 
dare  not  deny,  and  cannot  evade  it.  A  word,  while  it  saves  the  inno- 
cent, will  secure  the  punishment  of  the  guilty,  and  shall  we  hesitate  to 
pronounce  it?  Shall  we  content  ourselves  with  our  own  imagined 
exemption  from  this  fate,  and  shut  our  ears  to  the  cries  of  justice  and 
humanity?  Shall  "sensibility  (as  has  been  finely  observed)  sleep  in 
the  lap  of  luxury"(a),  and  not  awake  at  the  voice  of  wretchedness  ?  I 
urge  this  point  with  more  earnestness,  because  I  have  witnessed  more 
than  one  condemnation  under  false  constructions  of  law,  or  perjured,  or 
mistaken  testimony  ;  sentences,  that  would  now  have  bc'en  reversed  if 
the  unfortunate  sufferers  were  within  the  reach  of  mercy.  I  have  seen, 
in  the  gloom  and  silence  of  the  dungeon,  the  deep  concentrated  ex- 
pression of  indignation  which  contended  with  grief;  have  heard  the 
earnest  asseverations  of  innocence,  made  in  tones  which  no  art  could 
imitate;  and  listened  with  awe  to  the  dreadful  adjuration,  poured  forth 
by  one  of  these  victims  with  an  energy  and  solemnity  that  seemed  su- 
perhuman, summoning  his  false  accuser  and  his  mistaken  judge  to  meet 
him  before  the  throne  of  God.  Such  an  appeal  to  the  high  tribunal 
which  never  errs,  and  before  which  he  who  made  it  was  in  a  few  hours 
to  appear,  was  calculated  to  create  a  belief  of  his  innocence  ;  that  belief 

(a)  Eilcn   PmiriplfSof  PenM  Law. 


134  INTRODUCTORY  REPORT  TO 

was  chanced  into  certainty  ;  the  perjury  of  the  witness  was  discovered, 
and  he  fled  from  the  infamy  that  awaited  him  ;  but  it  was  too  late  for 
any  other  eflect,  than  to  add  one  more  example  to  the  many  that  pre- 
ceded it  of  the  danger,  and  I  may  add  impiety  of  using  this  attribute 
of  the  divine  power,  without  the  infallibility  that  can  alone  properly 
direct  it.  And  this  objection  alone,  did  none  of  the  other  cogent  rea- 
sons against  capital  punishment  exist,  this  alone  would  make  me  hail 
the  decree  for  its  abolition  as  an  event,  so  honourable  to  my  country  and 
so  consoling  to  humanity,  as  to  be  cheaply  purchased  by  the  labour  of 

a  life. 

I  cannot  quit  this  part  of  the  subject  without  submitting  to  the  general 
assembly  the  opinion  of  one  whose  authority  would  justify  an  experi- 
ment, even  more  hazardous  than  this,  but  whose  arguments  are  as  con- 
vincing as  his  name  is  respectable.  They  are  not  the  opinions  of  one 
whom  the  cant,  which  is  used  to  cover  the  ignorance  of  the  day,  would 
call  a  theorist,  but  of  a  man  whose  whole  life  was  spent  in  the  useful 
and  honourable  functions  of  the  highest  magistracy,  whose  name  is  al- 
wavs  mentioned  with  reverence,  and  whose  doctrines  are  quoted  as  au- 
thority, wherever  the  true  principles  of  legal  knowledge  are  regarded. 
Hear  the  venerable  D'Aguesseau  : 

"  Who  would  believe  that  a  first  impression  may  sometimes  decide 
the  question  of  life  and  death  ?  A  fatal  mass  of  circumstances,  which 
seem  as  if  fate  had  collected  them  together,  for  the  ruin  of  an  unfortu- 
nate wretch,  a  crowd  of  mute  witnesses  (and  from  that  character  more 
dangerous)  depose  against  innocence  ;  they  prejudice  the  judge,  his 
indignation  is  roused,  his  zeal  contributes  to  seduce  him;  losing  the 
character  of  the  judge  in  that  of  the  accuser,  he  looks  only  to  that  which 
is  evidence  of  guilt,  and  he  sacrifices  to  his  own  reasonings  the  man 
whom  he  would  have  saved  had  he  listened  only  to  the  proofs  of  the 
law.  An  unforeseen  event  sometimes  shows,  that  innocence  has  sunk 
under  the  weight  of  conjectures,  and  falsifies  the  conclusions  which 
circumstances  had  induced  the  magistrate  to  draw.  Truth  lifts  up  the 
veil  with  which  probability  had  enveloped  her ;  but  she  appears  too 
late!  The  blood  of  the  innocent  cries  aloud  for  vengeance  against  the 
prejudice  of  his  judge  ;  and  the  magistrate  passes  the  rest  of  his  life  in 
deploring  a  misfortune  which  his  REPENTANCE  CANNOT  REPAm"(a). 

The  earnestness  for  this  reform  is  sometimes  reproached  to  its  advo- 
cates as  proceeding  from  a  childish  fear,  that  magnifies  the  apprehension 
of  that  which  we  know  is  appointed  to  us  all.  Not  so.  The  value  of 
life  is  not  overrated  in  the  argument.  There  are  occasions  in  which 
the  risk  of  its  loss  must  be  incurred  ;  in  which  the  certainty  of  death 
must  be  encountered  with  firmness  and  composure.  These'  occasions 
are  presented  by  patriotism  in  defence  of  our  country  and  our  country's 
rights  ;  by  benevolence  in  the  rescue  of  another  from  danger  ;  by  re- 
ligion, whenever  persecution  offers  the  martyr's  crown  to  the  faithful  : 
and  it  is  not  known  or  believed  that  those  who  propose  to  abolish  death 
as  a  punishment,  either  fear  it  as  a  natural  event  or  shun  its  encounter 
when  required  by  duty,  more  than  those  who  think  it  ought  to  be  re- 
tained. He  who  preserved  the  life  of  a  Roman  citizen,  was  entitled 
to  a  more  honourable  recompense  than  the  daring  soldier  who  ventured 
his  own  by  first  mounting  the  breach.  The  civic  was  preferred  to  the 

(a)  D'Auguess^au,  16  Meicuriale. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  133 

mural  crown.  The  Romans,  during  the  best  period  of  their  history, 
reduced  this  abolition  to  practice.  "Far,"  said  their  great  oratory 
endeavouring  in  a  corrupted  age  to  restore  the  ancient  feeling  on  the 
subject,  "  far(«)  from  us  be  the  punishment  of  death — its  ministers — its 
instruments.  Remove  them,  not  only  from  their  actual  operation  on 
our  bodies,  but  banish  them  from  our  eyes,  our  ears,  our  thoughts;  for, 
not  only  the  execution,  but  the  apprehension,  the  existence,  the  very 
mention  of  these  things  is  disgraceful  to  a  freeman  and  a  fjoman  citi- 
zen." Yet  the  Romans  were  not  very  remarkable  for  a  pusillanimous 
fear  of  death.  In  the  age  of  which  I  speak,  they  did  not  want  the  ex- 
citement of  capital  punishment  to  induce  them  to  die  for  their  country. 
On  the  contrary,  it  might,  perhaps,  be  plausibly  argued,  that  the  ser- 
vile disposition,  which  disgraced  the  latter  ages  of  the  republic,  was  in 
some  measure  caused  by  the  change,  which  made  the  sacrifice  of  life 
the  expiation  for  crime,  instead  of  the  consummation  and  proof  of 
patriotic  devotion. 

Conscious  of  having  been  guilty  of  much  repetition,  and  certain  that 
I  have  weakened,  by  my  version  of  them,  arguments  much  better  used 
by  others,  I  am  yet  fearful  of  having  omitted  many  things  that  might 
have  an  effect  in  convincing  any  one  of  those  to  whom  this  report  is 
addressed.  The  firm  religious  belief  I  have  of  the  truth  of  the  doctrine 
I  advance,  contrasted  with  the  sense  of  my  incapacity  to  enforce  it  upon 
others,  must  have  produced  obscurity  where  the  interests  of  humanity 
require  there  should  be  light,  and  confusion  where  the  performance  of 
my  great  duty  demands  order.  But  the  truth  will  appear  in  spite  of 
these  obstacles.  From  the  midst  of  the  cloud,  with  which  human  im- 
perfection has  surrounded  her,  her  voice,  like  that  of  the  Almighty 
from  the  mount,  will  be  heard  reiterating  to  nations  as  well  as  to  in- 
dividuals, the  great  command,  "Tnou  SHALT  NOT  KILL." 

Having  more  fully  than  was  intended,  but  much  more  imperfectly 
than  the  subject  demands,  reviewed  the  great  characteristic  that  dis- 
tinguishes the  code,  the  total  abolition  of  capital  punishment,  it  will  be 
necessary  to  advert  (which  will,  hereafter,  be  very  briefly  done)  to 
other  penalties,  which,  for  reasons  nearly  as  cogent,  have  been  also 
abrogated.  As  to  the  nature  of  the  punishments,  by  which  these  are 
proposed  to  be  replaced,  the  principal  one,  imprisonment  in  its  various 
grades,  is  fully  discussed  in  the  Code  of  Prison  Discipline.  Fines  are 
retained,  but  with  modifications  that  lessen  the  force  of  the  objections 
usually  made  to  that  punishment.  It  is  certain,  that  indiscriminately 
applied  to  the  poor  and  the  rich,  this  is  one  of  the  most  unequal  punish- 
ments that  can  well  be  imagined;  and  that  the  wide  range  of  discretion 
which  the  apportionment  of  it  must  necessarily  require  to  be  vested  in 
the  judge,  is  another  strong  objection;  but  when  that  discretion  is  pro- 
perly exercised,  no  penalty  can  be  so  easily  proportioned  to  the  offence 
and  to  the  circumstances  of  the  offender;  it  is  divisible  in  the  most  per- 
fect degree,  and  admits  of  complete  compensation  whenever  it  has  been 
improperly  enforced.  But  yet  it  was  foreseen  that  cases  would  occur, 
in  which  the  wealth  of  the  offender  might  make  the  highest  range  of  a 

(a)  Carnifex  et  abductio  capitis,  et  nomen  ipsum  ciucis  absit,  non  motlo  a  corpore  civium 
Rumanorum  seil  etiain  a  cogitatione,  oculin,  auribus — harum  etiain  omnium  recum  non  solum 
eventus  atque  perpessio,  sed  etiam  conditio,  expectatio,  tnenlio  ipsa  denique,  indigoa  cive 
Romano,  atque  nomine  Hbero  est. —  Cicero  pro  Rabirio. 


136  INTRODUCTORY  REPORT  TO 

iliM-ivtionary  fine  a  penally  too  light  to  be  felt;  and  in  which  his 
novfrtv  might  change  the  lowest  into  utter  ruin.  To  avoid  as  much 
as  possible  these  inconveniences,  the  fine,  in  most  cases,  is  accompanied 
by  a  discretion  to  commute  it  into  simple  imprisonment,  which  may 
be  inflicted  on  those  whose  circumstances  would  enable  them  to  despise 
a  fine;  and  on  the  other  hand,  to  avoid  the  oppression  and  ruin  of  the 
poor  it  is  provided  that  no  fine  shall  ever  exceed  one-fourth  of  the  clear 
property  of  the  delinquent ;  and  still  further  to  secure  the  indigent 
from  ruin,  and  at  the  same  time  to  provide  for  his  punishment;  where 
there  is  no  property,  the  fine  is  to  be  commuted  into  imprisonment, 
calculating  one  day  for  every  two  dollars(a)  of  the  fine,  limiting  it, 
however,  so  that  whatever  may  be  the  amount  of  the  fine,  the  imprison- 
ment shall  not  exceed  ninety  days.  Fines  are  also  rendered  more  equal, 
when  inflicted  for  a  breach  of  official  duty,  by  apportioning  them  to  the 
amount  of  official  emolument.  There  are  also  general  rules,  intended 
to  impress  on  the  mind  of  the  judge  the  principles  by  which  he  ought 
to  be  guided,  in  the  exercise  of  the  discretion  vested  in  him  by  the  law. 
These  will  be  found  in  the  Code  of  Procedure,  and  the  reasons  for 
those  directions  in  the  Introductory  Report  to  that  Code. 

The  collection  of  fines  is  regulated  by  the  same  rules  which  govern 
executions  in  civil  cases  ;  giving  to  the  state  no  preference  over  other 
creditors,  but  from  the  time  of  registering  the  order  imposing  the  fine. 

Considering  fine  as  a  personal  punishment,  the  death  of  the  offender 
operates  as  a  discharge  at  any  time  before  it  is  paid.  Any  other  ar- 
rangement would  make  it  operate  as  a  partial  forfeiture  upon  his  heirs. 

Forfeiture  and  suspension  of  certain  civil  and  political  rights  are  also 
punishments  inflicted  by  the  code.  They  are  applied  chiefly  to  mis- 
demeanours in  office,  and  to  such  offences  as  show  the  want  of  the  pro- 
per qualities  to  perform  the  duties  which  are  required  by  them.  These 
are  sparingly  inflicted,  because,  if  too  frequent,  it  would  create  a  body 
of  men  in  the  community  discontented  with  their  situation  and  ready  to 
promote  any  violent  change. 

Among  the  civil  rights,  however,  which  are  forfeitable,  is  not  found 
that  of  testifying.  The  reasons  of  making  this  change,  are  set  forth 
at  some  length  in  the  Introductory  Report  to  the  Code  of  Evidence. 
Here  it  will  be  sufficient  to  remark,  that  such  a  disqualification  would 
be  a  most  serious  punishment  to  persons  whose  property,  reputation, 
or  life,  might  depend  on  the  testimony  of  the  person  disqualified,  but 
could  be  none  to  him. 

In  apportioning  punishments  to  different  modifications  of  the  same 
offence,  a  mode  has  been  adopted  which  appeared  simple  and  easily 
understood.  It  is  that  of  directing  the  increase  or  diminution  of  the 
punishment  for  the  simple  offence  to  be  made  by  a  fractional  proportion; 
for  instance,  the  punishment  for  assisting  at  an  unlawful  assembly,  is 
fine  from  fifty  to  three  hundred  dollars,  and  imprisonment  from  three 
to  twelve  months;  but  as  this  offence  is  more  reprehensible  in  a  magis- 
trate, or  other  officer,  it  is  provided,  that  if  any  such  are  guilty  of  it, 
the  penalty  shall  be' doubled.  The  same  effect  might  be  produced  by 

(a)  This  valuation  of  a  day's  imprisonment  may  seem  high,  but  a  just  regard  for  personal 
liberty  induced  a  belief  that  double  the  standard  of  daily  wages  would  not  be  deemed  ex- 
cessive. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  137 

enacting  in  the  article  relating  to  such  modification  of  the  offences,  that 
the  punishment  should  be  fine  from  one  hundred  to  six  hundred  dollars, 
and  imprisonment  not  less  than  six  nor  more  than  twelve  months.  But 
the  contrary  course  was  adopted;  because,  being  equally  intelligible,  it 
avoided  repetition,  which,  as  all  the  conciseness  consistent  with  per- 
spicuity was  studied  in  framing  the  code,  made  it  an  object  of  some 
importance  ;  and  because  the  precise  proportion  being  enounced  in 
declaring  the  penalty,  the  aggravation  or  diminution  of  the  guilt  was 
more  readily  impressed  on  the  mind.  A  reference  to  the  rules  for 
making  these  apportionments  will  enable  the  general  assembly  to 
judge  of  the  expediency  of  the  provision.  It  is  one,  however,  of  mere 
convenience  ;  does  not  touch  any  of  the  essential  features  in  the  code, 
and  if  disapproved,  the  same  end  may  be  produced  by  a  labour  nearly 
mechanical,  of  inserting  the  augmentation  and  diminution  at  length  in 
each  of  the  cases  where  it  is  directed  to  be  proportionably  increased  or 
diminished.  The  only  very  material  objection  to  this  change  would 
be  increasing,  without  necessity,  the  bulk  of  the  work,  and  destroying 
the  association  of  ideas  which  it  was  intended  to  preserve. 

Before  entering  into  the  examination  which  it  is  proposed  to  make  of 
the  classification  and  definition  of  the  several  offences,  one  or  two  of  the 
general  and  peculiar  features  of  the  code  must  be  adverted  to.  The  first 
is,  the  enunciation  of  the  general  principles  on  which  it  is  founded.  In 
the  first  arrangement  of  the  work,  this  idea  occurred  as  one  of  the  highest 
utility:  and  although  it  was  perfectly  unprecedented,  I  was  not  deterred 
from  the  execution  by  its  novelty.  The  advantages  are  recited  in  the 
chapter  itself,  and  need  scarcely  any  elucidation(a).  If  it  be  conceded, 
that  the  people  ought  to  know,  not  only  what  their  agents  have  done, 
but  their  reasons  for  doing  it;  that  any  work,  and  particularly  that  of 
legislation,  will  be  better  done  when  the  object  is  clearly  defined,  and 
the  means  and  rules  for  attaining  it  have  been  attentively  considered  ; 
that  uniformity  is  necessary,  and  that  it  will  be  better  preserved  by 
having  a  record  of  the  grounds  upon  which  former  laws  were  made; — 
if  any  of  these  things  be  conceded,  then  is  that  part  of  the  code  a  valu- 
able improvement,  provided  it  contains  the  true  principles  of  penal 
legislation — such  as  cannot  change,  and  which,  if  good  now,  will  re- 
main so  for  ever.  These,  once  observed,  once  acknowledged  to  be  the 
rule  ;  every  future  law  will  be  measured  by  their  standard.  Then,  no 
more  discordant  provisions  ;  no  more  vacillating  legislation ;  no  more 
accumulation  of  statutes,  upon  the  same  matter  ;  none  of  those  evils,  in 
short,  which  are  contrary  to  these  principles.  They  will  perform  the 
office  of  a  constitutional  rule,  not,  indeed,  avoiding  those  laws  which 
are  made  contrary  to  it,  but  preventing  their  very  existence.  I  rely 
more  on  the  importance  and  utility  of  this  part  of  the  work,  because  it 
is  that  which,  both  in  its  form  and  substance,  has  received  the  most 
decided  approbation  of  all  those  who,  both  in  Europe  and  America, 
have  made  it  the  subject  of  examination  or  criticism. 

An  introductory  nolice  contains  the  explanation  of  certain  provisions 
intended,  chiefly,  to  avoid  circumlocution  and  repetition,  in  the  course 
of  the  work.  The  disgusting  tautology  of  the  English  statutes,  from 
which  our  own  are  not  entirely  free,  is  by  this  means  avoided.  The 
strictness  with  which  their  judges  adhered,  at  times,  to  the  letter  of  the 

(a)  Preamble  to  the  Penal  Code. 


138  INTRODUCTORY  REPORT  TO 

statute  induced  the  necessity  of  ringing  all  the  chances  which  number, 
eender,  and  time  required,  to  bring  within  the  words  of  the  statute, 
every  possible  case  which  they  could  govern,  and  the  inconvenience 
has  been  so  much  felt,  that  a  bill  has  lately  passed,  containing  in  sub- 
stance^), the  same  enactments  for  avoiding  it,  that  are  contained  in 
the  third  chapter  of  the  code  I  now  present. 

One  article  of  this  chapter  relates  to  another  feature  in  the  system  that 
is  entirely  new,  but  it  is  thought  a  very  important  improvement.  I 
mean  the  definition  of  all  the  technical  words  or  phrases  used  in  the 
work.  The  utility  of  this  must  be  acknowledged  by  those  whose  ob- 
jection to  the  introduction  of  the  new  code  is,  that  it  will  unsettle  the 
signification  that  has  been  affixed,  by  judicial  decisions,  to  words  most 
commonly  used  in  statutes.  Now  if  this  certainty  be,  as  it  unquestion- 
ably is,  an  advantage  of  the  first  consequence  ;  then  its  benefit  must  be 
in  proportion  to  the  degree  of  certainty  which  is  given  ;  but  judicial 
decisions  cannot,  from  their  nature,  give  this  certainty  in  as  great  a  de- 
gree aspositivelaw;  the  book  of  definitions  thereforewill  be  positive  law, 
and  in  order  to  know  the  sense  in  which  any  word  is  used  in  the  code, 
it  will  be  only  necessary  to  turn  to  its  definition,  instead  of  poring  over 
a  countless  number  of  volumes,  and  endeavouring,  from  their  incom- 
plete or  contradictory  statements,  to  find  the  sense  in  which  it  has, 
at  times,  been  employed  in  different  cases.  But  it  must  be  observed, 
that  although  the  endeavour  has  been  to  preserve  as  much  as  possible 

(a)  The  following  extract  from  Mr  Peel's  speech,  introductory  to  this  bill,  will  show,  that 
this  part  of  the  plan  has  been  deemed  worthy  of  adoption  in  Great  Biitain. — "  I  certainly 
have  set  the  example  to  the  house  of  drawing  up  such  bills  for  the  future,  in  an  intelligible 
manner.  Not  being  myself  a  lawyer,  and  possessing,  of  course  no  technical  knowledge,  I 
do  confess,  sir,  that  there  is  no  task  which  I  contemplate  with  so  much  distaste;  as  the 
reading  through  an  ordinary  act  of  parliament.  In  the  first  place,  the  long  recapitulations, 
the  tedious  references,  the  constant  repetitions,  the  providing  or  designating  offences  as 
punishments  for  the  specific  case  of  men,  women  and  children,  and  for  every  degree  and 
relation  in  society,  and  the  necessity  of  indicating  these  several  personages,  and  matters  by 
as  many  appropriate  relations  and  designations — then  the  confusion  resulting  from  the  at- 
tempt to  describe,  and  constantly  referring  to  many  different  descriptions  of  property.  Really, 
sir,  all  these  various  repetitions,  recapitulations,  and  references  are  so  tedious  and  so  perplex- 
ing, that  I  for  one,  almost  invariably  find  myself  completely  puzzled  before  I  get  to  the  end 
of  a  single  clause.  The  mode  I  have  adopted  in  this  bill  to  obviate  all  this  confusion  and 
uncertainty,  does  seem  to  me,  I  speak  it  with  submission,  much  more  eligible  and  precise 
than  the  usual  phraseology,  adopted  in  these  acts,  and  might,  I  cannot  help  thinking,  be  pur- 
sued with  advantage  in  bills  which  may  be  brought  in  hereafter.  I  will  give  you  an  example. 
It  is  enacted  in  my  bill,  that  if  any  person  be  convicted  of  entering  into  and  stealing  in  any 
house,  room,  &c.  he  shall  be  liable  to  a  certain  penalty;  and  in  the  conclusion  of  the  act, 
that  there  may  be  no  doubt  arising  from  want  of  specification  of  sex  or  the  identity  of  the 
offender,  there  is  a  clause  to  this  effect:  « And  in  order  to  remove  all  doubt  as  to  the  mean- 
ing  and  intention  of  certain  words  in  this  act,  be  it  hereby  further  enacted,  that  whenever 
the  words  person,  party,  offender,'  and  so  forth  occur, « they  shall  each  and  all  of  them  be 
deemed  to  intend  and  demonstrate  any  number  of  persons  or  parlies;  and  of  any  sex,  being 
the  offender  or  offenders  under  this  act.'  If  any  person,  therefore,  commit  an  offence  con- 
templated by  that  act,  he  will,  under  the  general  description,  be  liable  to  the  penalty  affixed  to 
My  bill,  therefore,  will  include  every  person,  male,  or  female,  and  of  every 
rank  or  cond.tion  of  offending  under  its  enactments.  Owing  to  the  various  lights  in  which 
I  have  considered  this  provision  and  the  extent  which  I  have  thus  given  to  the  bill,  I  am 
afraid  it  will  be  impossible  to  frame  one  more  comprehensive  " 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  139 

the  same  words  that  are  used  in  common  parlance,  to  express  the  same 
ideas,  yet,  whenever  there  was  any  uncertainty,  the  signification  has 
been  fixed  according;  to  the  sense  in  which  the  expression  is  used  in  the 
code  ;  and  that  philological  science  has  always  been  sacrificed  to  cer- 
tainty and  precision.  The  Book  of  Definitions,  therefore,  must  not  be 
consulted  as  a  dictionary  of  the  language  of  the  country,  but  of  that 
of  the  Code,  whenever  the  uncertainty  of  the  former  created  the  neces- 
sity of  declaring  in  what  sense  the  term  is  employed. 

1  will  not  attempt  to  conceal  from  the  general  assembly,  the  extreme 
difficulty  of  this  part  of  my  labour  ;  more  than  any  other,  it  exercised 
my  closest  and  intensest  attention,  and  I  think  it  has  not  been  exercised 
in  vain.  I  think  so,  not  only  from  the  satisfaction  of  my  own  mind, 
but  from  the  approbation  of  men  who  have  had  the  kindness  to  employ 
high  intellect,  enforced  by  official  duty,  to  the  task  of  close  thinking  on 
legal  subjects,  in  trying  to  detect  the  errors  of  that  part  of  the  work  : 
and  who  have  given  me  leave  to  say,  that  they  have  found  none.  These 
venerable  names,  with  the  opinions  they  have  given,  will  be  found  in 
the  appendix.  But  whatever  weight  is  due  to  this  authority,  I  disavow 
any  design  of  sheltering  myself  or  any  thing  I  have  done,  behind  it.  It 
is  the  duty  of  the  general  assembly  to  judge  for  themselves,  and  for  the 
people  to  whom  they  are  accountable.  To  their  judgment  I  submit. 
Another  advantage  of  this  feature  in  the  system  is  this  ;  that  however 
imperfect  it  may  be  at  present,  the  law  for  giving  effect  to  the  code 
contains  enactments  for  its  amendment  and  progression  towards  that 
improvement,  which  all  your  penal  laws,  by  this  arrangement,  must 
gradually  acquire. 

The  other  articles  of  this  chapter  need  no  comment. 
We  come  now  to  the  Code  itself.  The  first  chapter  of  the  first  book 
contains  General  Provisions.  Most  of  them  are  in  exact  conformity 
with  what  is  generally  supposed  to  toe  the  present  laws,  but  so  expressed 
as  to  leave  no  room  for  doubt  or  cavil;  some  of  them,  however,  deserve 
particular  notice.  The  evil  already  pointed  out,  attending  the  passage 
of  successive  penal  laws  on  the  same  subject,  without  repealing  the  first, 
is  one  so  likely  to  recur,  that  some  general  rules  were  thought  necessary 
to  regulate  the  effect  of  such  legislation.  Reasoning  from  what  ought 
to  be,  rather -than  from  what  is,  it  might  be  supposed  that  when  a  new 
penalty  was  created  without  repealing  a  former  law  that  had,  also,  im- 
posed one,  the  legislature  intended  to  preserve  both,  and  such  has  hither- 
to been  the  construction;  but,  in  fact,  it  is  the  very  reverse;  the  new 
penalty  is,  nine  times  in  ten,  intended  as  a  substitute,  and  the  old  law 
is  suffered  to  stand  merely  through  haste  or  negligence.  An  article 
provides  for  this,  and  declares  that  in  such  case,  unless  the  contrary  is 
expressed,  the  former  penalty  shall  be  abrogated. 

A  more  important  disposition  is  that  which  declares  that  there  shall 
be  but  one  mode  of  construing  penal  laws,  according  to  the  plain  import 
of  the  words  they  employ,  and  expressly  abolishes  what  are  called  fa- 
vourable and  strict  constructions;  in  other  words,  permitting  the  court 
sometimes  to  say  that  the  law  means  more,  sometimes  less,  than  the 
legislature  intended.  Common  sense  acknowledges  but  the  one  mode, 
when  the  language  is  clear  and  explicit.  When  the  lav/  is  ambiguous, 
another  article  provides  the  remedy.  Such  a  law,  if  it  purport  to  im- 
pose a  penalty,  is  void;  and  he  who  is  accused  of  contravening  it,  must 
be  acquitted.  In  the  fear,  however,  that  such  general  terms  may  some- 


140  INTRODUCTORY  REPORT  TO 

times  he  used  as  may  include  an  act  which  the  legislature  could  not 
have  intended  to  forbid,  an  article  has  been  added  since  the  code  was 
printed,  specially  providing,  that  in  such  cases,  the  defendant  must  be 
acquitted,  and  tile  case  reported  to  the  legislature;  who  may  then,  more 
explicitly  declare  their  will  to  govern  future  cases.  A  perusal  of 
the  statute  against  concealed  weapons,  will  exemplify  the  necessity 
of  this  provision.  There,  a  knife  is  expressly  called  a  weapon,  and 
the  "wearing  it  in  the  coat,  or  any  place  about  the  wearer,  so  that 
it  do  not  appear  in  full  view,"  makes  him  liable  to  a  penalty,  and 
subjects  him  to  search  ;  wearing  a  penknife  in  a  man's  waistcoat 
pocket,  is  an  offence  within  the  plain  meaning  of  the  words  of  the 
statute,  employed  in  their  usual  sense  ;  and  yet,  it  evidently  could  not 
be  the  intent  of  the  legislature  to  make  this  an  offence.  Other  cases  of 
the  like  kind  may  occur,  and  the  law  should  provide  against  inaccu- 
racy, as  well  as  grosser  faults. 

Another  article  expressly  forbids  all  convictions  for  constructive 
offences ;  that  is,  offences  that  are  created  by  courts,  and  not  by  the 
legislature.  The  latteralone  are  the  proper  organ  for  declaring  what  acts 
or  omissions  shall  be  punished,  and  the  text  forbids  the  judiciary,  for 
reasons  which  it  assigns,  from  interfering  in  their  functions.  Whether 
our  courts  have  extended  any  offences,  by  construction,  is  not  known, 
nor  can  it  be  until  some  means  are  taken  to  report  and  publish  their 
decisions  in  criminal  cases  ;  but  it  is  certain  that  they  adopt  the  con- 
structive larcenies  and  forgeries  of  the  English  law(a),  and  there  is 
every  reason  to  suppose  that  the  same  causes  will  produce  the  same 
effects.  Those  which  we  have  seen  in  another  country,  where  the 
state  of  society  and  manners  are  similar  to  our  own,  we  may  expect 
here.  It  will  not  be  denied,  that  England  has  suffered  the  most  cruel 
evils  by  this  exercise  of  judicial  power.  The  restriction,  then,  in  the 
text  was  necessary.  We  may,  hereafter,  have  a  judge  who  may  exer- 
cise his  constructive  ingenuity  upon  murders  or  burglary,  or  other  of- 
fences, as  Jefferies  did  upon  treasons.  Wise  laws  must  look  beyond  the 
present  day  ;  and  it  is  their  office  to  foresee  and  counteract  the  effects 
of  propensities  which  tend  to  disturb  or  corrupt  the  order  of  society. 

The  second  chapter  of  this  book  contains  provisions  which,  relating 
solely  to  prosecutions  and  trials,  are  enlarged  on  in  the  text  of  the  code 
of  procedure,  and  will  be  elucidated  in  the  introductory  report  to  that 
code.  One  only  of  these  will  be  mentioned  here,  that  relating  to  the 
trial  by  jury,  and  this  only  for  the  purpose  of  referring  to  what  has  been 
said  on  that  subject  in  the  first  report,  to  which  I  need  add  nothing,  and 
from  which  all  my  subsequent  reflections  have  suggested  nothing  to 
retrench. 

The  third  chapter  contains  the  general  provisions  which  relate  to 
persons  amenable  to  the  penal  laws.  Most  of  them  have  no  novelty  to 
call  for  any  explanation— some,  however,  do.  Citizens  and  inhabitants 
of  the  state  may  be  punished,  as  well  for  acts  done  out  of  the  state  as 

(a)  If  one  lends  a  horse  to  another,  who  rides  away  with   him,  Blackstone  declares  it  is 

79  ;  and  in  1786,  by  a  construction  never  before  heard  of,  it  was  declared  to 

be  a  larceny.     Forgery  was  originally  confined  to  making  the  deed  of  another.     It  has  been 

since  extended  to  a  very  different  offence,  making  a  deed  in  the  true  name,  the  offender  re- 

presenting  himself  to  be  another  person. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  141 

for  them  within  ;  but  in  the  former  case,  only  when  it  is  so  expressly 
declared.  The  state  has  an  undoubted  right  to  forbid  and  punish  any 
acts  done  out  of  its  jurisdiction,  which  are  calculated  to  produce  an  in- 
jury to  its  government  or  the  rights  of  its  citizens.  On  this  principle 
the  government  of  the  United  States  made  it  penal(a)  for  any  citizen 
of  the  United  Stales,  although  residing  abroad,  to  carry  on  any  corres- 
pondence with  a  foreign  government,  for  the  purpose  of  influencing  its 
measures  with  respect  to  the  United  States;  and  also  under  a  high  pen- 
alty, forbids  any  citizen,  without  its  limits,  from  fitting  out  any  vessel 
to  cruise  on  a  power  with  vvhom(6)  they  are  at  peace.  The  general 
assembly  will  find  this  principle  acted  upon  in  that  part  of  the  code 
which  relates  to  fraudulent  insurances. 

Children  below  nine  years  of  age,  cannot,  as  formerly,  be  convicted 
of  any  crime;  nor  between  that  and  fifteen,  unless  on  proof  of  sufficient 
understanding  to  know  the  nature  of  an  offence.  The  crimes  of  children 
of  that  age  are  those  of  their  parents  or  adult  associates  ;  and  whatever 
may  be  the  apparent  depravity  of  an  infant  below  that  age,  the  true 
correction  is  education  and  restraint.  These  are  fully  provided  for  by 
the  Code  of  Prison  Discipline  ;  and  the  subject  of  juvenile  criminality 
is  so  fully  discussed  in  the  Introductory  Report  to  that  code,  that  it  is 
omitted  here. 

Offences  committed  by  married  women,  under  the  influence  or  by 
the  command  of  their  husbands,  and  by  minors  under  the  like  control 
of  any  one  to  whom  he  owes  obedience,  or  by  whom  he  may  be  sup- 
posed to  be  influenced,  present  strong  cases  of  extenuation  on  the  one 
part,  and  aggravation  on  the  other,  which,  in  this  chapter,  are  provided 
for  by  a  correspondent  increase  and  diminution  of  punishment :  this  is 
new,  but  its  justice  must  be  so  apparent  as 'to  need  no  comment. 

There  is  some  analogy  between  these  cases  and  that  of  a  soldier. 
Taught  by  the  severest  discipline  to  obey,  without  examination,  the 
commands  of  superiors,  it  appeared  to  me  that  while  such  command 
ought  not  to  exempt  him  from  punishment  for  the  commission  of  a 
crime,  that  there  would  be  some  cruelty  and  injustice  in  making  him 
liable  for  acts  committed  by  such  command,  which  are  only  misde- 
meanors. In  these  cases,  officers  giving  or  transmitting  such  illegal 
orders,  are  alone  made  liable.  It  is  no  objection  to  this,  that  the  of- 
ficer may  escape  by  leaving  the  state  ;  so  may  the  man  ;  so  may  any 
delinquent. 

The  circumstances  are  pointed  out  in  this  chapter,  and  are  again  en- 
larged on  in  another  part  of  the  code,  which  shall  be  a  justification  for 
executing  the  order  of  a  magistrate,  and  for  doing  unlawful  acts  under 
duress.  The  want  of  precise,  intelligible  and  accessible  rules  on  both 
these  subjects,  has  led  to  much  litigation  and  many  prosecutions.  It 
is  hoped  that  those  laid  down  in  this  chapter,  are  sufficiently  explicit 
to  avoid  many  of  these  evils. 

On  the  propriety  of  the  seventeenth  article  of  this  chapter,  relative 
to  acts  done  by  mistake  or  accident,  which  would  have  been  offences 
had  they  been  intended,  there  may  be  some  doubts.  There  is  none 
that  it  is  in  apparent  contradiction  to  the  other  general  provision,  that 

(a)  Act  for  punishing  certain  crimes  therein  specified,  SOih  January  1799. 
(6)  Act  of  20th  April  1818,  sect  4. 


142  INTRODUCTORY  REPORT  TO 

the  will  must  concur  with  the  act  in  order  to  constitute  an  offence. 
Here  there  was  both  an  illegal  act  and  the  will  to  do  one,  but  they  did 
not  concur.  The  will  was  to  do  one  illegal  act;  the  execution  was  that 
of  another;  therefore,  the  contradiction  still  remains.  It  is  supposed, 
however,  to  be  justified  on  two  grounds;  one,  that  the  want  of  ordinary 
care  and  attention  supplies  the  place  of  malice  or  design;  the  other,  that 
there  seems  to  be  a  propriety  in  distinguishing  between  negligent  acts, 
occasioned  by  a  design  to  do  mischief,  although  not  that  really  done, 
and  the  same  negligent  act  done  without  any  intent  whatever  to  injure. 
It  will  be  observed  that  article  provides,  that  these  provisions  do  not 
govern  the  case  of  homicide,  for  which  particular  rules  in  this  respect 
are  provided  under  the  proper  head  ;  and  that  there  are  other  limita- 
tions reducing  the  penalty  when  the  intent  was  to  commit  a  misdemea- 
nor only.  Yet,  with  all  this,  I  am  bound  to  say,  that  although  I  think 
these  articles  can  practically  produce  no  injustice,  yet  I  wish  1  could 
have  put  them  in  such  a  shape  as  to  avoid  an  apparent  conflict  with 
principle.  They  soften,  however,  the  rigour  of  the  present  law,  which 
punishes  all  homicide  as  murder,  although  there  was  no  intent  to  kill 
or  even  to  injure,  if  it  is  done  in  the  attempt  to  commit  a  felony. 

The  attempt  to  commit  an  offence,  which  fails  from  some  circum- 
stance not  dependent  on  the  will  of  the  offender,  is  also  made  punish- 
able, because  every  attempt,  although  it  fail  of  success,  must  create 
alarm,  which,  of  itself,  is  an  injury,  and  the  moral  guilt  of  the  offen- 
der is  the  same  as  if  he  had  succeeded.  Moral  guilt  must  be  united 
to  injury  in  order  to  justify  punishment  ;  but  as  the  injury  is  not,  in 
the  case  before  us,  as  great  as  if  the  act  had  been  consummated,  only 
half  the  punishment  is  awarded. 

The  fith  chapter  relates  to  a  repetition  of  offences,  and  the  increased 
punishment  which  it  directs  to  be  inflicted  on  those  who  are  not  de- 
terred by  one  punishment  from  the  commission  of  other  crimes,  seems 
so  necessary  and  reasonable,  that  it  may  pass  without  observation. 

The  sixth  requires  more  consideration.  It  contains  general  rules 
respecting  principals,  accomplices,  and  accessaries,  making  some  ma- 
terial changes  ;  to  the  introduction  of  which,  however,  1  have  heard 
of  no  objection.  Its  first  operation  is  by  defining  distinctly  who  shall 
be  principals  and  accomplices,  to  avoid  the  continual  repetition  con- 
sidered to  be  necessary  now  in  all  our  penal  statues,  such  as  this  in  the 
laws  against  forgery — "  Whoever  shall  forge  or  counterfeit,  or  cause 
or  procure  to  be  forged  or  counterfeited,  or  shall  willingly  aid  or 
assist  in  the  forging  or  counterfeiting,"  &c.  One  general  provision, 
applicable  to  all  cases,  will  render,  in  future,  the  use  of  all  these  words 
unnecessary.  The  persons  described  by  them  are  principal  offenders 
or  accomplices  ;  they  both  incur  the  same  punishment,  because  the 
guilt  is  the  same,  and  they  cause  the  same  injury  ;  but  the  offences  are 
distinguished,  and  it  is  thought  that  the  line  between  them  is  so  accu- 
rately marked  that  no  mistake  of  consequence  can  occur.  They  are 
distinguished,  because,  although  the  guilt,  the  injury  and  the  punishment 
is  the  same,  yet  the  act  is  different,  and  it  is  of  great  consequence,  in 
penal  law,  not  to  confound  in  one  denomination  acts  of  a  different  na- 
ture. To  counsel  the  commission  of  a  crime,  is  certainly  a  very  dif- 
ferent act,  requiring  different  evidence  from  that  of  actually  commit- 
ting it. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  143 

The  law  and  the  denomination  is  also  somewhat  altered,  and  it  seems 
to  me  not  without  necessity.  Our  law,  as  it  now  stands,  has  two 
species  of  accessaries  ;  one  "  before  the  fact,"  the  other  "after  the 
fact ;"  but  having  so  little  resemblance  either  in  their  definition,  in 
their  guilt,  or  in  any  other  circumstance,  that  it  was  deemed  expedient 
to  dissolve  the  connexion,  and  place  accessaries  before  the  fact  in  the 
class  of  accomplices,  a  denomination  which  implies  closer  connexion 
with  the  guilt  of  the  principal  offender  than  the  accessary,  who,  as  the 
name  implies,  can  only  become  criminal  after  the  offence  has  been 
counselled  by  the  accomplice  and  executed  by  the  principal.  This  last 
offence  consists  in  aiding  the  offender  to  escape  from  justice,  a  fault 
that  may  have  many  palliating  circumstances,  originating  in  the  best 
feelings  of  our  nature.  That  of  the  accomplice  can  have  none.  There- 
fore, the  punishment  is  very  different ;  and  as  those  feelings  are  strong- 
est in  certain  close  connexions,  formed  as  well  by  society  as  nature, 
and  which  should  not  be  broken  without  evident  necessity  by  the  laws, 
it  is  further  provided,  that  certain  near  connexions,  who  may  follow 
up  this  impulse  of  nature  by  aiding  another  in  his  endeavours  to  avoid 
the  pain  or  disgrace  of  punishment,  should  not  incur  this  penalty. 

In  affixing  punishments,  we  should  compare  the  evil  of  the  offence 
with  that  necessarily  caused  by  the  punishment,  and  decide  as  the  ba- 
lance shall  incline.  In  this  case  the  evil  of  the  offence  is  now  and  then 
the  escape  of  an  offender  ;  a  rare  event,  and  not  of  much  moment, 
because,  by  his  escape  from  the  punishment  ordained  by  the  laws,  he 
inflicts  on  himself  that  of  banishment,  which  answers  two  good  ends  : 
it  deters  almost  as  effectually  as  the  regular  punishment ;  it  rids  you 
of  the  offender,  and  prevents  a  repetition  of  his  offence  ;  and  it  fails 
only  in  the  chance  of  reformation,  which  a  good  system  might  pro- 
mise ;  but  which,  under  your  present  laws,  could  not  be  hoped  for. 
If  the  punishment  is  incurred,  its  evil  is  the  conflict  between  human 
laws,  and  in  cases  of  near  ties  of  blood,  those  which  God  has  implant- 
ed in  our  hearts,  in  which  the  former  will  never  prevail,  but  will  be 
despised  for  their  inefficacy,  or  abhorred  if  they  are  carried  into  exe- 
cution. The  same  observation  that  was  made  to  show  the  propriety 
and  convenience  of  establishing  a  general  rule  applying  to  accomplices 
in  all  offences,  applies  also  to  accessaries.  By  the  present  laws,  as  has 
been  already  observed,  accessaries  after  the  fact,  in  burglary,  are  sub- 
ject to  a  much  heavier  penalty  than  those  in  murder  ;  and  owing  to 
the  application  of  the  term  to  two  distinct  offences,  it  is  doubtful  whe- 
ther a  different  and  greater  punishment  is  not  also  designated  in  cases 
of  larceny  ;  for  the  term  used  in  the  law,  which  directs  whipping  as 
the  punishment  for  accessaries  in  that  offence,  does  not  distinguish 
whether  those  before,  or  after  the  fact  are  intended. 

The  whole  of  this  first  book,  of  which  I  have  just  finished  the  very 
hasty  review,  is  new.  In  no  other  code,  that  I  have  seen,  has  the 
legislator  entered  into  a  full  and  frank  explanation  with  the  people  ; 
told  them  what  he  intended  to  do,  and  for  what  reason  ;  marked  out 
the  limits  of  the  right  course,  and  bade  them  observe  whether  he  ex- 
ceeded them.  In  no  other  has  he  treated  them,  in  short,  like  reason- 
able beings,  and  told  them  to  reflect  as  well  as  obey.  The  whole  of 
this  book  was  presented  with  the  first  report,  published  by  your  pre- 
decessors, with  the  stamp  of  their  unanimous  approbation,  and  has 


144  INTRODUCTORY  REPORT  TO 

been  received,  both  in  Europe  and  the  Uuited  States,  with   the  most 
favourable  judgment  of  the  profession. 

The  subject  of  the  second  book  of  this  code  is  offences  and  punish- 
ments, and  its  first  title  treats  of  their  general  nature  and  divisions. 
Its  purpose  is  chiefly  that  of  order  and  arrangement  ;  an  object  of 
more  consequence  than  the  confused  legislation  that  has  generally  pre- 
vailed would  lead  us  to  suppose.  Irregularity  is  not  only  an  evil  in 
itself,  by  the  loss  of  time  and  the  errors  which  it  necessarily  occasions, 
but  it  leads  to  greater  evils  ;  to  an  ignorance  of  the  laws,  because  if 
any  difficulty  is  created  in  finding  them,  it  is  not  very  frequently 
overcome.  The  slightest  obstacle  is  sufficient  to  make  us  give  up  the 
search  for  that  which  does  not,  and  which  we  flatter  ourselves  will  not, 
inmmediately  concern  us  ;  and  there  is  no  obstacle,  more  discouraging 
than  the  want  of  arrangement.  That  which  is  proposed  is  simple. 
The  great  divisions  are  few,  and  their  subdivisions  grow  naturally  out 
of  them.  An  offence  is  first  xlefined  to  be  an  act  or  omission  which 
is  forbidden  by  a  positive  law,  under  the  sanction  of  a  penalty.  The 
terms  of  this  definition  exclude  all  offences  against  unwritten  law, 
all  offences  growing  out  of  a  construction  of  any  law,  all  con- 
travention of  any  law  which  has  not  provided  a  penalty  for  its  breach. 
But  it  is  not  enough  to  know,  generally,  what  are  offences.  They 
must,  from  their  nature,  be  different  in  degree,  and  affect  different 
objects.  These  two  considerations  call  for  two  general  divisions.  By 
the  first,  which  marks  the  degree  of  offences,  they  are  divided  into 
CRIMES  and  MISDEMEANORS,  ;  the  former  designating  those  which  may 
be  punished  by  imprisonment  in  the  Penitentiary,  or  by  a  forfeiture 
of  any  civil  or  political  right  ;  the  latter,  all  other  offences.  These 
terms  have  been  retained  rather  than  adopted.  In  the  English  law 
they  have  generally  an  analogous,  although  somewhat  indefinite,  signi- 
fication. "Crime,  properly  speaking,"  according  to  the  language  of  Black- 
stone^),  "  being  used  to  denote  such  offences  as  are  of  a  deeper  dye  ; 
while  smaller  faults,  and  omissions  of  less  consequence,  are  comprised 
under  the  gentler  name  of  misdemeanors."  While  the  terms  were 
retained,  it  was  necessary  that  a  precise  idea  should  be  affixed  to  them. 
Where  is  the  line  to  be  drawn  between  offences  of  a  deeper  dye  and 
those  of  less  consequence  ?  How  deep  the  dye  must  be  to  give  to  an 
offence  the  colour  of  a  crime,  or  how  little  the  consequence  which  is  to 
sink  its  importance  into  a  misdemeanor,  the  learned  commentator  does 
not  inform  us.  Perjury  is  an  offence  of  deeper  dye  than  an  assault  ; 
yet,  according  to  Christian(6),  they  are  both  misdemeanors.  Lar- 
ceny is  an  offence  of  less  consequence  than  murder  ;  yet  they  are  both 
crimes.  The  code  gives  a  precise  rule,  drawn  from  the  nature  of  the 
punishment ;  one  that  produces  no  violent  change  in  the  usual  mean- 
ing of  the  words,  but  gives  them  that  precision  which  is  necessary  in 
every  term  employed  in  a  law. 

The  character  drawn  from  the  object  against  which  the  offence  is 
directed,  gives  us  the  second  general  division  into  public  and  private 
offences.  Here  it  is  impossible  that  the  line  of  demarcation  should  be 
very  distinct.  Offences  which  chiefly  injure  society  at  large,  and  come 

(a)  Black.  Com.  5.  (&)  Note  to  filackstone,  p.  5. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS. 

under  the  first  denomination,  can  rarely  be  committed  without  also 
affecting  private  rights  ;  nor,  in  general,  can  any  injury  be  offered  to 
an  individual  that  does  not  directly,  or  in  a  remote  degree,  affect  the  well- 
being  of  the  community.  But  it  ought  to  be  distinctly  understood,  that 
this  division  is  entirely  for  the  sake  of  order  and  arrangement  in  fram- 
ing the  code,  and  that  no  mistake  in  arranging  a  particular  offence,  un- 
der one  or  the  other  of  these  heads,  can  be  productive  of  the  least  in- 
jury. No  act  can  be  prosecuted  as  a  public  or  private  offence  ;  the 
terms  are  unknown  in  the  procedure,  they  do  not  affect  the  form  or 
the  substance,  and  are  merely  labels  affixed  to  each  offence,  that 
they  may  be  arranged  in  the  proper  place,  and  each  offence  is  defined 
without  any  relation  to  its  arrangement  under  one  or  the  other  of  these 
denominations.  The  same  observation  applies  to  the  different  subdi- 
visions ;  they  give  names  to  the  different  titles  under  which  the  parti- 
cular offences  are  found,  but  no  one  can  any  more  be  indicted  for  an 
offence  against  the  sovereign  power  of  the  state,  calling  it  by  that  name 
only,  than  he  could  for  a  public  offence  by  that  designation  ;  the  par- 
ticular act  forbidden  by  the  law,  must  be  designated,  because  that 
alone  constitutes  the  offence.  To  prevent  any  error,  all  this  is  concise- 
ly expressed  in  the  text  of  the  code. 

The  second  chapter  of  this  book  has  the  nature  and  general  divi- 
sions of  punishments  for  its  object.  Much  of  what  may  be  thought 
necessary  comment  on  this,  has  been  anticipated  in  the  preceding  dis- 
cussion on  the  infliction  of  death,  and  for  a  still  greater  portion,  we 
must  refer  to  the  introductory  report  on  the  Code  of  Prison  Discipline. 

Here,  it  will  be  proper  to  remark  on  the  general  features  of  the  scale 
of  punishments  that  are  provided  for  different  offences. 

There  is  an  evident  distinction  in  the  nature  of  offences,  which  de- 
mands a  correspondent  one  in  punishments.  Some  show  an  habitual 
depravity,  which  requires  long  discipline  to  amend;  others  are  the  effect 
of  an  occasional  disregard  of  the  rights  of  others,  which  may  be  cor- 
rected by  the  privation,  pain,  or  disrepute  of  the  punishment,  the  re- 
membrance of  which  may  prevent  repetition,  and  the  example  deter 
from  imitation.  On  this  distinction  rests  the  system  of  punishments. 
Penitentiary  imprisonment  being  designated  for  all  offences  of  the  first 
description,  and  the  other  penalties  for  the  others.  Of  these  last,  simple 
imprisonment  in  close  custody  is  one  which  is  the  most  frequently  em- 
ployed, because  it  is  applicable  to  offences  which,  although  they  do  not 
evince  the  degree  of  depravity  which  characterises  those  punishable  in 
the  penitentiary,  yet  require  not  only  correction,  but  restraint.  In  these 
cases  solitude  is  administered  long  enough  to  give  time  for  reflection, 
and  to  operate  as  a  punishment,  but  is  not  prolonged,  as  in  penitentiary 
confinement,  to  the  period  which  is  there  necessary  to  destroy  vicious 
habits  and  acquire  those  of  honest  industry.  It  is  the  connecting  link 
between  simple  imprisonment,  in  which  nothing  but  a  temporary  and 
slight  correction  is  thought  necessary,  and  the  strong  remedy  of  solitude 
and  labour. 

Liberty  being  the  best  enjoyment  of  a  citizen,  its  privation,  in  differ- 
ent degrees,  was  thought  the  fittest  punishment  for  faults  which  disturb 
social  order,  by  which  only  it  can  be  preserved  ;  and  the  good  citizen 
will  value  the  greatest  of  all  blessings  the  more,  when  he  sees  that  its 
enjoyment  is  inseparably  attached  to  an  observance  of  the  laws,  and  its 
loss  generally  the  consequence  of  their  breach. 
T 


146  INTRODUCTORY  REPORT  TO 

But  to  some,  the  privation  of  personal  liberty  would  be  a  severer 
punishment  than  to  others,  for  the  same  offence,  and  for  some  infractions 
it  would  be  too  great  for  the  offence.  Recourse  in  these  cases  must, 
therefore,  be  had  to  property,  the  next  great  source  of  human  happi- 
ness ;  and  its  curtailment  by  fines,  forms  another  grade  in  the  scale  of 
penalties.  The  principles  which  have  been  applied  to  adapt  them  to 
different  offences  have  been  already  explained.  It  need  only  be  added 
here,  that  in  some  designated  cases  the  necessary  discretion  of  adopt- 
ing one  or  the  other,  or  both,  of  these  punishments,  simple  imprison- 
ment and  fine,  is  vested  in  the  judge,  within  certain  limits.  Because, 
in  all  those  cases  there  must  be  a  correction  for  the  offence  ;  and  the 
judge  only  can  determine,  from  the  circumstances  of  the  party,  whether 
the  forfeiture  of  property  would  operate  as  such  correction,  or  whether 
a  temporary  privation  of  liberty  ought  not  to  be  substituted  or  added. 

It  has  been  wisely  ordered,  that  liberty  and  property,  although  the 
principal  sources  of  our  enjoyment,  should  lose  the  greatest  part  of  their 
value,  if  not  attended  with  personal  consideration,  or  the  good  opinion 
of  those  with  whom  we  are  associated,  and  the  equal  enjoyment  of  all 
those  rights  to  which  they  are  entitled.  This  social  feeling  gives  to 
the  legislator  another  hold  upon  the  citizen  in  order  to  force  an  ob- 
servance of  the  laws,  by  threatening  for  their  breach  a  privation  of 
those  rights,  and  of  the  confidence  and  consideration  by  which  alone 
they  can  be  obtained.  This  forms  the  third  and  only  remaining  class 
of  punishments — privation  of  office,  of  civil,  of  political  rights,  either 
for  a  time  or  perpetually. 

This  is  all  the  pjenal  machinery  that  is  employed  in  the  code  either 
for  punishment,  repression,  example,  reformation,  or  prevention.  The 
infliction  of  bodily  pain  by  mutilation  or  stripes,  indelible  stigmas,  ex- 
posure in  the  pillory,  the  stocks,  or  by  public  labour,  are  banished  from 
the  code  for  reasons  that  are  conclusive,  and  which  have  once  been 
presented  to  the  legislature  and  received  their  approbation.  All  of 
them  are  at  war  with  every  principle  on  which  this  system  is  founded; 
and  if  either  is  retained,  no  good  result  can  be  expected  from  the  adop- 
tion of  it.  But  there  is  a  reason  drawn  from  our  state  of  society  so 
conclusive  against  the  last,  that  it  cannot  be  resorted  to  without  danger 
of  the  most  serious  kind.  There  is  a  line  of  demarcation,  which  it 
would  be  rash  in  the  extreme  to  destroy  even  in  punishments;  and  the 
sight  of  a  freeman  performing  the  forced  labour,  or  suffering  under  the 
stripes  usually  inflicted  on  the  slave,  must  give  rise  to  ideas  of  the  most 
insubordinate  nature.  A  false  economy  only  could  suggest  the  repeti- 
tion of  an  experiment  which  has  every  where  failed,  every  where  pro- 
duced increase  of  misery,  degradation  and  crime ;  and  here  might  be 
the  cause  of  evils  worse  than  all  these  combined. 

This  part  of  the  plan  has,  in  a  very  flattering  notice  taken  of  it  in 
England,  been  considered  as  defective,  because  it  does  not  combine 
satisfaction  to  the  party  injured  by  the  offence,  with  the  punishment 
inflicted  by  public  justice. 

This  idea  has  been  a  favourite  one  with  many  criminalists.    It  has  been 

riled  in  the  French,  and  some  other  codes,  and  once  found  a  place 

laws.     But,  however  plausible  the  reasons  for  its  adoption  may 

ar,  neither  the  principle  on  which  the  system  was  founded,  nor  the 

expenence  of  its  effects,  would  permit  me  to  recommend  it. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  147 

The  distinction  between  penal  and  civil  laws  appears  to  me  to  be  this, 
that  the  first,  from  their  very  nature,  exclude  the  idea  of  private  com- 
pensation, whereas  it  is  the  sole  object  of  the  other  in  all  cases  of  injury; 
if  it  were  not  so,  public  justice  would  depend  on  the  vindictive  or  in- 
terested passions  for  its  execution,  or  might  be  defeated  by  the  apathy 
of  the  individual ;  and  if  the  old  system  of  pecuniary  satisfaction  for 
crimes  were  not  renewed  by  the  laws,  it  would  be  by  stipulations  be- 
tween the  parties.  This  has  been  so  well  acknowledged,  that,  in  most 
laws,  it  has  been  made  criminal  for  the  injured  party  to  interfere  be- 
tween the  society  and  the  offender  against  its  laws  ;  and  after  a  prose- 
cution has  begun,  it  is  only  in  cases  of  small  importance  that  the  system 
of  compromise  is  allowed  to  act. 

The  foundation  of  all  penal  law  then  is,  that  the  society  has  received 
an  injury  by  the  breach  of  its  rules.  All  violations  of  right  are  not 
brought  within  their  purview  ;  those  which  are  not,  remain  to  be  com- 
pensated by  the  civil  law.  Over  these  it  has  an  exclusive  jurisdiction  ; 
and  although  offences  for  breaches  of  penal  law  generally  are  accom- 
panied by,  or  consist  of,  a  private  injury,  yet  the  rights  acquired  to 
the  society,  and  to  the  individual,  by  this  breach,  are  totally  distinct. 
The  last  can  only  seek  for  compensation  ;  the  first  for  something  else, 
which  may  be  according  to  circumstances,  either  less  or  more.  In 
case  of  theft,  the  owner  has  a  right  to  ask  for  restoration  or  compensa- 
tion. The  society  has  a  right  to  inflict  punishment  independent  of 
that  restoration.  So  far  has  this  been  carried  by  the  common  law, 
that  by  one  of  its  extraordinary  fictions  the  private  right  is  merged,  as 
they  call  it,  in  the  felony,  and  the  individual  loses  the  right  to  his  pro- 
perty, as  soon  as  it  can  be  proved  that  it  was  stolen  from  him  ;  that  is 
to  say,  when  that  is  proven,  which  shows  conclusively  that  he  has  a 
title  to  it.  This  distinction  existing  then  in  their  very  nature  between 
civil  and  penal  law,  the  question  is,  whether  it  is  better  to  combine  the 
two  operations,  so  as  by  the  same  suit  to  give  satisfaction  and  inflict 
punishment  ?  This  is  a  question  of  mere  convenience  ;  and  it  is  to  be 
answered,  better  perhaps,  by  experience  than  by  reasoning.  If  it  is 
to  be  effected  so  as  to  preclude  the  party  from  his  civil  suit,  he  must 
be  represented  in  the  prosecution.  This,  in  theory,  would  disturb  the 
order  of  proceeding,  and  by  confounding  the  two  jurisdictions,  cause 
confusion  in  our  ideas  of  the  nature  of  public  justice,  when  we  saw  it 
so  much  identified  with  private  interest.  It  must  necessarily  produce 
some  irregularity.  The  wish  or  the  interest  of  the  public  prosecutor 
might  be,  to  bring  on  the  trial  when  the  private  party  was  not  ready  to 
show  the  extent  of  his  loss,  and  there  would  be  either  delay  or  injustice. 
It  would  lessen  the  dignity  of  the  tribunals  of  public  justice,  by  mak- 
ing them  the  arena  in  which  contests  were  carried  on  for  mere  private 
rights.  The  attorney  for  the  party  in  the  civil  side  must  necessarily 
take  a  part  in  the  conduct  of  the  cause  ;  and  the  course  he  thought 
best,  might  differ  from  that  preferred  by  the  public  prosecutor.  This 
collision  must  produce  disputes,  and  disputes  between  those  concerned  in 
the  administration  of  justice,  ought  to  be  avoided.  By  not  suffering  the 
person  injured  to  be  made  a  party,  these  inconveniences  indeed  may  be 
avoided,  but  then  you  commit  the  greater  injustice  of  deciding  on  his 
interests  without  hearing  him.  These  conclusions  appear  to  me  to  be 
confirmed  by  experience  on  both  modes  of  procedure.  In  France, 
the  person  injured  may  make  himself  a  party  ;  but  as  far  as  a  foreigner 


148  INTRODUCTORY  REPORT  TO 

can  judge  from  the  reports  of  the  cases,  most  of  the  inconveniences, 
which  might  be  anticipated,  have  seemed  to  follow.  And  in  our  state, 
where  the  damages  were  directed  to  be  inquired(a)  of  by  the  jury  that 
tried  the  cause,  merely  on  the  prayer  of  the  party,  it  was  found  so  in- 
convenient in  practice,  that  the  law  was  soon  afterwards  repealed. 

For  these  reasons  it  has  been  thought  most  consonant  to  principle, 
as  well  as  most  convenient  in  practice,  to  carry  on  the  prosecution 
entirely  unconnected  with  the  private  suit ;  but,  in  all  cases,  to  permit 
the  party  injured  to  sue  for  his  damages,  and  whenever  a  claim  for  a 
fine  and  those  damages  come  in  collision,  to  give  a  preference  to  the 
private  claim. 

The  discussion  of  the  nature  and  effects  of  different  punishments 
has  been  necessarily  irregular.  Its  anticipation  could  not  be  avoided 
in  some  degree,  when  we  considered  the  great  characteristic  of  the 
code — the  abolition  of  the  penalty  of  death  ;  and  a  very  great  part  is 
under  an  equal  necessity  postponed,  to  be  treated  of  in  the  Introductory 
Report  to  the  Code  of  Prison  Discipline. 

I  now  proceed  to  the  consideration  of  the  important  titles  which 
define  the  different  offences,  and  assign  to  each  its  appropriate  punish- 
ment. 

The  first  class  contains  those  which  affect  the  sovereign  power  of 
the  state,  and  first  in  that  class  stands  the  crime  of  treason.  This  is 
defined  by  the  constitution,  and  therefore  the  code  could  do  no  more 
than  repeat  the  definition.  But  the  same  offence  has  the  same  defi- 
nition in  the  constitution  of  the  United  States,  and  in  both  instruments 
is  described  as  "levying  war"  and  "  adhering  to  enemies  ;"  but  from 
the  nature  of  the  federal  union,  a  levy  of  war  against  one  member 
of  the  union  is  a  levy  of  war  against  the  whole  ;  therefore  it  is  con- 
cluded, that  treason  against  the  state,  being  treason  against  the  United 
States,  it  is  to  be  punished  under  their  laws  and  in  their  courts. 

There  are,  however,  other  offences  which  affect  the  sovereignty  of 
the  state,  which  do  not  amount  to  levying  war  or  adhering  to  its  ene- 
mies. The  first  of  these  is  designated  under  the  name  of  sedition. 
It  is  defined  as  an  attempt  by  FORCE  or  ARMS  to  dismember  the  state, 
or  to  subvert  or  change  the  constitution  thereof.  This  is  one  of  the 
highest  crimes  that  can  be  committed  ;  and  it  must  be  observed,  that 
here,  and  elsewhere  in  this  report,  the  degree  of  crime  is  measured  by 
considering  as  well  the  moral  depravity  which  it  exhibits  as  the  injury 
it  occasions  to  the  community.  In  this  view  it  stands  high  in  the  scale 
of  offences,  and  the  highest  punishment  (imprisonment  for  life  in  the 
penitentiary)  is  awarded  to  it.  A  milder  punishment  is  designated 
for  him  who  shall  excite  others  to  commit  this  crime  by  writing  or  ver- 
The  employment  of  force  is  a  necessary  ingredient  in  the  first 
offence,  and  expressly  exciting  others  to  use  force  in  the  second.  Neither 
of  these  offences  are  provided  for  by  our  present  laws. 

Next  in  place,  but  with  scarcely  any  difference  in  degree,  is  the  crime 
ol  insurrection,  which  is  one  of  those  that  have  received  the  attention 

our  legislature;  and,  indeed,  is  one  of  high  consequence  in  the  actual 

state  of  our  population.     It  is  more  precisely  defined  in  the  code.     It 

consists,  m  aiding  by  a  freeman,  for  this  code  extends  to  no  others, 

ition  of  slaves  against  the  free  inhabitants  of  the  state,  or 

(")  Act  of  1805,  section  39. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  149 

assisting  at  an  assembly  of  slaves  for  the  purpose  of  promoting  such 
insurrection,  or  exciting  them  to  it.  It  is  punished  by  the  highest 
penalty  of  the  law — penitentiary  imprisonment  for  life.  To  prevent 
any  errors,  all  the  material  words  that  admit  of  different  constructions 
in  this,  or  other  descriptions  of  crimes,  are  clearly  defined.  To  endea- 
vour to  make  the  slaves  discontented  with  their  lot,  without  actually 
exciting  to  insurrection,  is  also  punished  by  a  fine  and  imprisonment. 

Next  in  order,  after  offences  against  the  sovereignty  of  the  state,  are 
those  which  affect  its  legislative  power.  The  offences  arranged  under 
this  title  are — force  directed  against  either  house  of  the  general  as- 
sembly to  dissolve  their  session,  prevent  their  meeting,  or  direct  their 
proceeding ;  threats  of  violence  to  a  member  to  influence  his  vote,  or 
actual  violence  in  consequence  of  his  official  conduct ;  bribing  or  at- 
tempting to  bribe,  any  such  member,  and  the  receipt  of  a  bribe  by  him. 
These  are  forbidden  under  appropriate  penalties,  and  with  a  proper 
definition  of  each  offence.  This  class  of  offences  has  not  yet  attracted 
legislative  attention,  perhaps,  because  it  was  thought  that  some  of  them 
might  be  sufficiently  punished  or  repressed  in  the  exercise  of  the  au- 
thority which  is  supposed  to  be  inherent  in  all  similar  bodies,  to  punish 
contempts,  without  entering  into  that  question  which,  under  our  con- 
stitution, is  not  very  easily  decided  ;  it  may  be  sufficient  to  say,  that  if 
that  power  extends  beyond  the  right  of  removing  any  immediate  ob- 
stacle to  the  proceedings  of  either  house,  and  of  enforcing  its  constitu- 
tional orders,  it  yet  has  not  the  power  necessary  for  the  occasion,  inas- 
much as  the  warmest  partisans  for  the  doctrine  of  contempts,  do  not 
contend,  that  any  punishment  the  house  can  inflict,  can  exceed  imprison- 
ment during  the  session.  It  seems  therefore  proper,  that  an  adequate 
penalty  should  be  provided  for  the  high  offences  mentioned  in  this  title; 
and  it  is  moreover  consistent  with  the  principles  of  our  government, 
that  every  offence  should  be  defined,  and  that  the  right  of  trial  by  jury, 
secured  by  the  constitution,  should  be  preserved  inviolate.  These  are 
effected  by  the  articles  of  this  title,  at  the  same  time  that  whatever 
privilege  is  constitutionally  vested  in  either  house,  remains  unimpaired. 
Giving,  offering  and  accepting  a  bribe  are  among  the  offences  enume- 
rated, and  the  punishment  here  assigned  to  it,  is  a  suspension  of  politi- 
cal rights  for  five  years,  or  fine  equal  to  four  times  the  amount  of  the 
bribe,  and  penitentiary  imprisonment  from  six  to  twelve  months  for  the 
person  offering,  and  forfeiture  of  political  rights,  and  fine  equal  to  five 
times  the  amount  of  the  bribe,  for  him  who  accepts  it.  The  difference 
in  the  punishment  was  calculated  to  suit  the  probable  situation  of  the 
several  offenders,  the  tempter  being  treated  more  severely  by  the  im- 
prisonment, than  him  who  yields  to  it ;  and  the  forfeiture  of  political 
rights  is  denounced,  in  this  case,  instead  of  a  suspension  ;  because,  he 
who  has  once  yielded  to  such  a  temptation,  ought  never  again  to  be 
trusted  with  political  power.  Where  the  value  of  the  bribe  offered  or 
accepted  cannot  be  discovered,  a  standard  rule  is  given  in  all  similar 
cases  for  the  measure  of  the  fine. 

Under  the  head  of  offences  against  the  executive  power,  we  have 
several  highly  injurious  and  immoral  acts  which  are  not  now  punishable 
by  any  of  our  statutes.  Bribery  is  confined  by  the  law  of  1818,  the 
only  act  we  have  on  the  subject,  to  bribing  or  offering  to  bribe,  a  "judge 
or  other  person  concerned  in  the  administration  of  justice,"  leaving  the 


150  INTRODUCTORY  REPORT  TO 

accepting  a  bribe  by  such  judge  or  person  so  employed,  and  the  giving, 
offering,  or  receiving  a  bribe  by  any  other  totally  unprovided  for.  By 
this  chapter,  it  is  extended  to  all  executive  officers,  and  the  following 
offences,  hitherto  unnoticed,  are  added  :  doing  official  acts  before  the 
oaths  and  the  security  required  by  law  are  taken  and  furnished;  forcible 
opposition  to  official  acts;  corruptly  agreeing  to  make  appointments,  or 
do  any  other  official  act  in  consideration  of  an  advantage(a)  not  allowed 
by  law,  and  not  being  an  emolument;  extortion,  which  is  fully  defined; 
receiving  an  emolument  not  allowed,  or  greater  than  is  allowed  by  law 
for  doing  official  acts  ;  committing  any  act  which  is  an  offence  under 
colour  of  office;  negligent  performance  of  official  acts,  by  which  injury 
is  received ;  all  these  are  made  offences,  and  punished  by  penalties 
which  are  supposed  to  be  appropriate  and  commensurate  to  them ;  and 
articles  are  added  extending  these  penalties  to  deputies,  to  persons 
exercising  the  office,  although  there  may  be  an  informality  in  their 
appointments ;  and  making  principals  answerable  for  the  acts  of  the 
deputy  when  they  are  done  with  his  consent.  The  officers  of  corpora- 
tions are  also  included,  as  well  as  those  exercising/?n'va/e  offices.  This 
is  an  important  title,  and  comprehends  several  offences,  a  few  only  of 
which  will  come  within  the  purview  of  the  existing  statutes,  under  the 
loose  description  of  misdemeanor  in  office. 

First  in  rank  under  the  head  of  offences  affecting  the  judiciary  power, 
are  those  relating  to  judges  and  juries,  and  of  them  the  most  important 
are  those  which  may  be  committed  by  these  functionaries  themselves. 
The  importance  of  these  duties,  the  dreadful  consequences  of  neglect 
or  corruption  in  the  performance  of  them,  has  attached,  in  all  coun- 
tries, a  sanctity  to  the  office  of  judge,  which  makes  that  a  crime  with 
him,  which  would  be  a  venial  fault  in  another.  In  all  ages,  therefore, 
while  the  public  veneration  has  been  readily  yielded  to  the  upright 
magistrate,  the  unjust  judge  has  been  the  universal  object  of  detestation 
and  contempt.  The  highest  rewards  have  not  been  deemed  too  great 
for  his  merits,  nor  the  most  cruel  punishments  too  severe  for  his  faults. 
Heaven  itself  must  have  inspired  our  British  ancestors  with  the  idea 
of  separating  the  decision  of  law  from  that  of  fact ;  for  nothing  could, 
with  so  much  effect,  lessen  the  danger  of  corruption.  The  jury,  un- 
approachable by  seduction,  because  not  called  into  existence  in  time  for 
it  to  operate  upon  them  ;  the  judge,  unable  for  the  most  part  to  decide 
without  their  intervention.  But  although  this  distribution  leaves  to 
neither  the  absolute  power  over  the  life  or  fortune  or  reputation  that 
is  put  in  the  law's  jeopardy — yet  each  of  them  have  sufficient  to  make 
it  necessary  that  their  integrity  should  be  protected  from  temptation, 
and  their  sense  of  duty  stimulated,  by  the  law.  There  are  some  who 
think,  that  with  respect  to  the  judicial  office,  it  would  be  degrad- 
ed by  enactments  which  suppose  the  possibility  of  its  high  func- 
tionaries being  influenced  by  such  inducements  as  would  bias  other 
men.  Confidence,  they  argue,  produces  integrity,  suspicion  provokes 
to  guilt ;  leave  the  high  characters  of  your  judges  to  be  sustained  by 
their  own  sense  of  honour,  and  do  not  fetter  them  by  any  of  the  degrad- 
ing restrictions  and  penalties,  that  you  devise  to  bind  other  officers. 

(a)  For  the  understanding  of  this  article,  recourse  must  be  had  to  the  definitions  of  the 
words  in  italics. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  151 

These  have  been  the  remarks  suggested  by  men  whose  opinions  de- 
serve attention,  on  the  chapter  now  under  consideration  ;  and  they 
were  repeated  so  earnestly,  that  I  yielded  more,  I  think,  to  respect 
than  to  conviction,  and  agreed  to  suppress  the  third  article  of  this  sec- 
tion, which  prohibits  a  judge  from  receiving  gifts  of  any  assignable  va- 
lue, unless  by  will,  or  from  a  near  relation.  The  reasons  urged  against 
it  have  been  stated.  Those  which  induced  me,  at  first,  to  introduce 
the  clause  shall  be  given,  that  the  general  assembly  may  judge  of  the 
propriety  of  reinstating  the  article  which  they  will  find  in, the  first 
printed  copies. 

I  acknowledge  the  force  of  the  maxim,  that  confidence  in  generous 
minds  begets  a  disposition  to  merit  it ;  but  t  deny  the  propriety  of  its 
general  application.  The  penalties  of  law  are  founded  on  a  supposition, 
that  without  them,  its  precepts  would  not  be  fulfilled.  Could  we  count 
on  that  generous  disposition  which  the  objection  supposes,  there 
would  be  no  need  of  any  sanction  to  our  laws.  The  legislator  need' 
only  point  out  his  will  and  express  his  confidence  in  the  integrity  of  those 
to  whom  it  was  directed,  and  the  work  of  legislatiqn  would  be  done. 
But  the  argument  is  not  pressed  so  far  ;  it  is  acknowledged  that  penal- 
ties are  necessary  to  insure  obedience  in  ordinary  cases  ;  but  it  is  said, 
that  judges  form  an  honourable  exception  ;  restrain  all  the  rest  of  the 
world  by  the  fear  of  punishment — trust  to  the  integrity  of  the  judge 
for  the  performance  of  his  duty.  What,  will  you  impose  no  restraint, 
no  impeachment  for  corruption,  no  indictment  for  bribery  ?  Yes, 
these  we  will  allow — but  he  must  not  be  restrained  from  accepting 
presents  as  the  testimonials  of  friendship,  which  are  no  more  than 
common  courtesies  of  life.  Now,  if  you  can  think  it  necessary  to 
guard  against  the  gross  corruption  of  direct  bribery,  why  will  you 
permit  a  practice  which  is  the  most  common  mode  of  effecting  it  ?  Not 
to  speak  of  their  being  made  the  vehicle  for  the  more  glaring  crimes, 
their  favourable  effect  on  the  mind  of  man,  is  evident  to  any  one  who 
has  the  slightest  knowledge  of  the  world.  Received  as  tokens  of  kind- 
ness at  first,  their  slight  value  excites  no  suspicion;  they  are  multiplied  ; 
their  value  is  increased,  and  the  obligation  goes  on  augmenting  until  it  can 
only  be  discharged  by  a  favourable  decree.  But  the  practice  ought  to 
be  forbidden,  if  it  should  have  no  other  effect  than  that  of  exciting  sus- 
picion. If  the  judge  has  been  in  the  habit  of  receiving  presents  of  game 
or  liquors  from  a  suitor  who  gains  his  cause,  the  loser  will  not  fail  to  at- 
tribute it  to  the  flavour  of  the  venison  or  the  exquisite  taste  of  the 
wine.  Nor  is  the  inhibition  either  new,  or  considered  as  derogatory 
to  officers  of  the  highest  trust.  It  is  a  constitutional  provision  that  no 
one,  holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
accept  any  presents  from  a  foreign  power.  If  this  does  not  degrade 
the  ambassador,  why  should  a  similar  one  degrade  the  judge  ?  Besides, 
be  consistent.  You  have  two  sets  of  judges.  If  those  who  determine 
the  fact,  when  they  are  exhausted  with  hunger  and  fatigue,  receive  the 
slightest  refreshment  from  one  of  the  parties,  you  dishonour  them  by 
setting  aside  their  verdict,  as  being  corruptly  procured,  and  often  punish 
them  for  misconduct ;  and  yet  you  think  it  degrading  to  the  other 
class  of  judges,  to  prevent  them  receiving  gifts  of  much  greater  value. 

The  other  acts  that  are  made  punishable  by  this  section  are  describ- 
ed with  pecision,  so  as  neither  to  subject  the  officer  to  vexatious  pro- 


152  INTRODUCTORY  REPORT  TO 

seditions    nor  to  suffer  any  judicial  oppression  or  malfeasance  to  es- 
cape the  'animadversion  of  the  law.     This  was  the  more  necessary, 
because,  by  our  statutes,  although  it  is  a  crime  to  offer  or  give  a  bribe 
to  a  judge,  there  is    no  penalty  denounced  against  him   for  accepting 
it(a),  unless  it  be  under  the  vague  denomination  of  misdemeanor(6); 
to  understand  which,  we  have  not  even  the  resource  of  a  reference  to 
the  English  law,  for  the  statute  which  creates  the  offence  was  passed 
since  the  year  1805,  and  contains  no  reference  to  that  law  ;  and  if  we 
had,  the  matter  would  not  much  be  mended,  as  we  have  seen  in  for- 
mer parts  of  this   report(c).     When  a  word  is  used  in  legislation,  that 
is  neither  technical  nor  explained  in  the  law,  it  must  of  course  be  un- 
derstood according  to  the  signification  it  has  in  common  parlance  ;  but 
there  can  be  no  technical   meaning  affixed  to  this  word,  because  there 
is  no  body  of  laws  to  which  we  are  or  can  be  referred  for  its  explana- 
tion.    We  have  no  common  law,  and  the  statute  refers  to  none,  there- 
fore,   it  must  have  the  same  meaning  here  that  it  would  in  common 
conversation.     What  is  that  ?  Both  etymology  and  usage  give  the  an- 
swer ;    any  misconduct  whatever.     A   misdemeanor   in  office,  then, 
is  any  demeanor  that  is  contrary  to  official  duty.     Our  present  law, 
therefore,  is  infinitely  more  strict  than  that  which  is  offered  as  a  sub- 
stitute ;  without  defining  any  particular  misconduct,   by  a  sweeping 
clause  it  makes  the  minutest  inattention  punishable  by  fine,  imprison- 
ment, loss  of  office,  and  incapacity  ever  to  hold  one      A  rude  or  has- 
ty word  to  an  advocate,  a  suitor,  or  a  witness,  is  misconduct,  and  so  is 
corruption — both  come  within  the  meaning  which  etymology  gives  to 
misdemeanor.     Should  a  judge    do  that  for  which  he  would  fine  a 
juror,  come  too  late  into  court — should  he  yawn  or  doze  on  his  bench 
during  the  sixth  hour  of  a  dull  speech,  the  affronted  orator  would  tax 
him  with  misconduct,  and  he  might  be  vexed,  although  a  jury  probably 
might  excuse  him  for  indulging  so  natural  a  propensity  ;  more  espe- 
cially if  the  speaker  were  one  of  those,  like  VirgiPs  priest — 

"  Spargere  qui  sotnnos,  manu,  cantuque,  solebat." 

Instead,  then,  of  taxing  the  provisions  of  this  chapter  with  improper 
hostility  to  the  judicial  character,  and  with  imposing  too  great  restraint 
upon  the  exercise  of  its  functions,  it  ought  to  be  considered,  as  it  truly 
is,  a  relief  from  the  danger  of  an  ambiguous  law,  that  creates  a  penalty 
which  might,  without  departing  from  the  words  of  the  statute,  be  made 
by  malice  or  ignorance  to  affect  the  fortune,  liberty  and  reputation  of 
a  respectable  magistrate,  for  a  trifling  misdemeanor.  In  this  section 
of  the  code,  on  the  contrary,  every  thing  is  defined-^-nothing  made 
punishable  but  what  is  injurious,  and  the  penalties  are  suited  to  the 
offence.  In  the  first  copy  there  was  a  material  omission,  by  which 
a  judge  was  inhibited  from  advising  a  suit,  or  giving  counsel  relative 
to  its  management,  without  making  the  necessary  exception  of  cases  of 
near  relations,  or  any  other  in  which  he  could  not  sit  as  a  judge.  This 
error  is  corrected. 

By  this  section  the  necessary  penalties  are  imposed  on  such  miscon- 
duct of  jurors  as  by  our  present  law  is  either  not  punishable  at  all,  or  is 

(a)  Act  of  19th  March.  1818,  sect.  5.  (ft)  Act  of  7th  June,  1806,  sect.  5. 

(c)  Ante,  p.  85. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  153 

BO  in  a  way  that  precludes  the  person  accused  from  the  benefit  of  a  trial 
by  jury,  and  the  other  advantages  given  by  law  in  other  prosecutions. 

As,  by  the  section  thus  reviewed,  judges  and  jurors  are  restrained  by 
penalties  from  acts  contrary  to  their  duty,  so  in  the  next  they  are  pro- 
tected from  all  attempts,  by  bribery,  violence  or  improper  persuasion, 
to  seduce  or  force  them  from  its  performance  ;  and  an  article  gives  a 
precise  rule  on  a  subject  left  very  much  at  discretion  by  our  present 
practice.  I  mean  the  publication  of  proceedings  in  court  during  the 
pendency  of  a  trial.  It  is  believed,  that  the  provision  will  secure  the 
dignity  of  the  court,  the  rights  of  the  parties,  and  the  liberty  of  the 
press. 

The  second  chapter  of  this  title  is  intended  to  prevent  the  bribery  of 
ministerial  officers  of  justice,  and  forcible  opposition  to  them  in  the  exe- 
cution of  their  duties.  The  laws  which  embrace  those  offences,  did 
not  seem  to  be  sufficiently  descriptive  of  the  acts  which  they  forbid, 
and  are  totally  silent  as  to  a  number  of  circumstances  which  ought 
to  be  explained.  What  are  official  acts;  what  forms  the  judicial  orders 
must  be  clothed  with  to  make  opposition  to  them  an  offence  ;  in  what 
cases  and  to  what  degree  opposition  is  lawful ;  what  degree  of  opposi- 
tion incurs  the  penalty  ;  what  ought  to  be  the  conduct  of  the  officer  in 
the  performance  of  his  duty,  so  as  to  entitle  him  to  the  protection  of 
the  law,  or  to  make  him  forfeit  it ;  are  deficiencies  in  the  present 
law,  which  are  supplied  by  that  which  is  offered. 

Connected  with  this  is  the  chapter  on  Rescue,  to  which  nearly  the 
same  observations  apply,  with  this  additional  reason  for  the  amendment 
of  the  present  law — that  although  it  punishes  the  rescue  of  a  person 
committed  for,  or  convicted  of,  any  other  than  a  capital  offence,  yet  a 
rescue  for  this  last  offence  is  only  made  punishable  where  the  person 
rescued  is  indicted  or  convicted;  but  leaves  the  case  of  his  rescue  after 
commitment,  but  before  he  is  indicted,  wholly  unprovided  for(a).  This 
error  is  corrected,  and  other  provisions  added,  to  make  the  law  explicit 
and  equal  in  its  operation.  In  order  to  effect  this  latter  object,  the 
punishment,  with  some  modifications  to  adapt  it  to  particular  cases,  is 
one-half  of  that  to  which  the  party  rescued  would  have  been  liable  had  he 
been  convicted  of  the  offence  for  which  he  was  in  custody,  and  a  certain 
fine  and  imprisonment  if  he  were  confined  on  a  civil  suit. 

Escape  and  breach  of  prison,  are  offences  analogous  to  that  of  rescue. 
Adopting  the  principle  of  the  English  law,  this  offence,  if  committed 
without  violence,  is  punished,  by  a  light  fine  and  imprisonment.  By 
our  present  law  it  is  not  provided  against  at  all.  If  committed  with 
violence,  it  incurs  the  punishment,  and  comes  under  the  description  of 
a  forcible  opposition  to  the  officers  of  justice.  If  the  escape  is  aided, 
or  voluntarily  permitted,  by  the  person  having  charge  of  the  accused, 
he  incurs  one  half  the  punishment  which  might  have  been  inflicted  for 
the  offence  with  which  the  accused  was  charged.  The  English  law 
makes  the  punishment  of  the  officer  depend,  in  a  great  measure,  on  the 
conviction  of  the  person  escaping;  for  if  such  conviction  take  place,  he 
suffers  the  same  punishment  with  the  delinquent;  if  he  be  acquitted  or 
not  taken,  the  keeper  only  suffers  fine  and  imprisonment  as  for  a  mis- 
demeanor. This  rule,  it  was  thought,  would,  in  many  cases,  defeat 
the  ends  of  justice.  The  risk  of  fine  and  imprisonment  was  not  thought 

(a)  Act  4th  May  1805,  section  26,  as  given  in  Martin's  Digest,  2d  vol.  240. 

u 


154  INTRODUCTORY  REPORT  TO 

sufficient  counterpoise  to  the  bribes  that  might  be  offered  by  wealthy 
delinquents.  The  punishment  assigned  to  this  offence  by  the  code, 
bears  a  proportion  to  the  crime  for  which  the  person  escaping  was 
committed,  because  the  injury  to  the  community  is  greater  in  propor- 
tion to  the  magnitude  of  crime,  and  the  temptation  offered  always  in- 
creases in  the  same  proportion,  and  it  is  incurred  whether  the  party 
originally  accused  be  acquitted  or  be  never  retaken  ;  neither  of  which 
circumstances  can  lessen  the  guilt  of  the  keeper.  And  allowing  either 
to  operate  in  his  favour,  would  evidently  make  it  his  interest  that  jus- 
tice should  be  avoided,  either  by  effectual  flight,  or  by  the  suppression 
of  testimony  necessary  for  conviction.  If  the  escape  be  voluntary,  the 
punishment  is  one  half  of  that  incurred  by  the  crime  charged  on  the 
prisoner;  if  negligent  only,  it  is  one  quarter. 

It  is  somewhat  singular  that  an  offence  of  this  importance,  so  deeply 
affecting  the  administration  of  justice,  should  not  be  provided  against 
by  our  laws,  otherwise  than  under  the  loose  head  of  misdemeanor  in 
office,  which  can  only  apply  to  civil  officers ;  but  if  the  crime  be  com- 
mitted by  a  sentinel  set  to  guard  the  prisoner,  or  by  a  person  having 
no  office  at  all,  it  is  unprovided  against. 

To  break  or  attempt  to  break  prison  by  the  prisoner,  legally  im- 
prisoned, when  accompanied  by  violence,  incurs  the  punishment  of 
from  six  months  in  close  custody  to  two  years.  Breach  of  prison  for 
the  purpose  of  rescuing  another,  is  punishable  by  penitentiary  imprison- 
ment from  two  to  five  years  ;  and  this  does  not  depend  on  the  legality 
of  the  imprisonment,  as  it  does  in  the  case  of  the  prisoner  himself.  A 
lesser  punishment  is  denounced  against  furnishing  a  prisoner  with  the 
means  of  making  his  escape,  whether  it  be  effected  or  not. 

The  seventh  chapter  of  this  title  adapts,  to  the  officers  of  justice,  all 
offences  described  in  the  chapters  relating  to  offences  committed  by 
executive  officers. 

The  important  duties  attached  to  the  profession  of  the  law,  have,  in 
all  nations  where  the  law  was  a  science,  given  its  members  the  greatest 
influence,  and  sometimes  made  them  obnoxious  to  the  most  unworthy 
suspicions.  Deemed  worthy  to  be  trusted  with  the  defence  of  the  pro- 
perty, reputation,  liberty  and  life  of  others;  they  were  yet  subjected  to 
have  their  own  reputation  blasted,  their  only  means  of  subsistence  for- 
feited, and,  if  not  their  lives,  all  that  makes  life  desirable  taken  from 
them,  for  offences  of  all  others  the  worst  defined,  by  a  summary  pro- 
cess, in  which  the  party  injured  was  the  prosecutor  and  the  judge,  and 
his  sentence  was  without  appeal.  There  was,  indeed,  a  corrective  in 
the  publicity  of  judicial  proceedings,  and  the  consequent  force  of  public 
opinion,  which  prevented  any  great  abuse  of  this  dreadful  power  ;  but 
this  was  too  uncertain  a  tenure  by  which  to  hold  reputation  or  property. 
Public  opinion,  in  its  sound  state,  might  protect,  but  when  disordered 
by  the  madness  of  party  or  prejudice,  would  but  stimulate  oppression. 
Such  a  state  of  things  was  so  little  in  unison  with  the  spirit  of  our  in- 
stitutions, and  indeed  with  the  letter  of  our  constitution,  that  it  at  length 
attracted  legislative  attention  ;  and  the  members  of  an  honourable  pro- 
ession  were,  by  a  law  passed  in  the  year  1823,  placed  on  a  footing  with 
other  citizens.  The  benefit  of  a  trial  by  jury  was  in  all  cases,  except 
that  of  contempts  in  open  court,  extended  to  them;  and  some  definition 
was  given  to  certain  offences  which  they  were  supposed  to  be  most 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  155 

liable  to  commit.  This  law  I  have  made  the  basis  of  the  articles  of  the 
ninth  chapter  of  the  title  we  have  now  under  review,  but  the  list  of 
offences  is  extended  ;  they  are  more  accurately  defined  ;  and  while  the 
object  has  been  to  protect  the  honourable  members  of  the  profession,  a 
proper  increase  of  punishment  has  been  denounced  against  those  who 
may  disgrace  it  by  their  cupidity  or  chicane. 

A  short  chapter  embraces  the  case  of  those  who  may  falsely  personate 
an  officer  of  justice,  or  a  suitor,  or  bail,  or  any  other  person.  This  was 
provided  for  by  our  statute,  and  also  the  case  of  a  false  personification 
for  putting  in  bail  or  confessing  a  judgment. 

Perjury  is  one  of  the  offences  Which  not  only  affects  the  administra- 
tion of  justice,  but  all  the  other  operations  of  government  in  its  various 
departments.  By  the  English  law  this  crime  could  only  be  committed 
by  false  swearing  in  some  judicial  proceeding.  Our  statute  of  1805 
wisely  extends  it  to  all  cases  in  which  depositions  or  affidavits  are 
taken  pursuant  to  the  laws  of  the  territory.  Doubts  might  arise,  under 
this  statute,  whether  affidavits  or  depositions,  taken  under  laws  made 
subsequent  to  that  statute,  were  included  in  it,  and  also,  whether  the 
affidavits  and  depositions  intended  were  not  exclusively  such  as  were 
taken  as  evidence  in  a  judicial  proceeding.  The  code,  by  covering  a 
broader  ground,  puts  an  end  to  those  doubts.  It  defines  the  crime  to 
be  "  a  falsehood  asserted  verbally  or  in  writing,  deliberately  and  wilfully, 
relating  to  something  present  or  past,  under  the  sanction  of  an  oath,  or 
such  other  affirmation  as  is  or  may  be  by  law  made  equivalent  to  an 
oath,  legally  administered  under  circumstances  in  which  an  oath  or 
affirmation  is  required  by  law,  or  is  necessary  for  the  prosecution  or 
defence  of  private  right,  or  for  the  ends  of  public  justice."  This  defi- 
nition includes  all  testimony  and  judicial  oaths  whatsoever,  whether 
oral  or  written  ;  and  it  further  extends  the  provisions  of  our  statute  so 
as  clearly  to  embrace  all  other  oaths,  which  are  required  by  law  to 
attest  the  truth  of  any  fact,  such  as  declarations  under  the  quarantine 
laws  and  the  like.  In  all  of  which  cases  the  moral  evil  and  the  injury 
to  the  community  may  be  as  great  as  if  the  perjury  were  committed  in 
a  court  of  justice  ;  yet  a  deliberate  falsehood,  asserted  under  oath,  ac- 
cording to  our  present  laws,  would  not  be  punishable  at  all,  except  it 
were  connected  with  a  judicial  proceeding  ;  unless  special  provision  to 
that  effect  should  be  made  in  the  law  requiring  the  oath,  which  is  fre- 
quently neglected  where  it  is  necessary,  and  for  want  of  a  general  pro- 
vision, such  as  the  code  contains,  unnecessarily  increases  the  length  of 
our  laws  where  it  is  not  neglected.  The  definition  excludes  the  breach 
of  promissory  oaths,  such  as  oaths  of  office,  from  the  guilt  of  perjury  ; 
because,  there  the  offence  is  not  one  that  exists  in  taking  the  oath, 
which  may  be  done  with  the  sincerest  intentions  of  keeping  it ;  but  in 
some  act  done  subsequently,  which  may  be  inconsistent  with  it.  If 
that  act  be  sufficiently  injurious  to  call  for  the  animadversion  of  the  law, 
it  will  be  found  to  have  been  provided  against,  under  its  proper  head  ; 
if  it  be  not,  it  is  contrary  to  the  principle  of  this  code  to  punish  it, 
however  unconscientious  it  may  be.  For  we  cannot  too  often  repeat, 
that  the  endeavour  has  been  to  place  no  acts  in  the  rank  of  offences, 
but  such  as  were  injurious,  and  were  done  either  with  a  design  to  in- 
jure, or  with  an  inattention  to  the  rights  of  others,  that  is  nearly  as 
reprehensible. 


156  INTRODUCTORY  REPORT  TO 

This  chapter  punishes,  under  the  appellation  of  false  swearing,  all 
deliberate  falsehoods,  asserted  in  voluntary  affidavits,  not  taken  in  the 
course  of  judicial  proceeding,  nor  required  by  law,  but  yet  made  the  en- 
gines of  detraction  and  other  mischiefs  ;  for  which  it  is  deplored  by 
writers  on  English  law,  that  it  affords  no  remedy.  The  punishment  of 
this  last  offence  is,  of  course,  lighter  than  the  former  ;  but  the  preva- 
lence of  the  evil  seemed  to  require,  that  it  should  be  repressed  by  a 
penalty,  and  the  nature  of  the  crime  suggested  the  further  provision, 
that  a  conviction  for  this  offence  might  be  given  in  evidence  against 
the  credit  of  the  party  in  any  case  in  which  he  might  be  sworn  as  a 
witness. 

On  this  head  of  perjury,  too  close  an  adherence  to  the  English  law- 
led  me  to  insert  an  article,  which  further  reflection  has  induced  me  to 
wish  may  be  erased.  It  is  the  second  of  the  chapter,  which  provides 
for  a  case  that  will  probably  never  happen,  and  can  cause  no  injury  if 
it  should,  the  case  of  a  witness  swearing  to  a  fact  that  is  true,  although 
at  the  time  he  believes  it  to  be  false. 

The  suborner  to  perjury  is  made  liable  to  the  same  punishment  with 
the  principal  offender.  In  this  the  code  agrees  with  the  present  law  ; 
and  it  adopts  the  same  measure  with  respect  to  false  swearing.  It 
also  adds  a  lighter  penalty  on  him  who  makes  an  ineffectual  attempt 
to  procure  the  commission  of  either  of  these  offences. 

The  provisions  of  the  eleventh  chapter  have  excited  much  atten- 
tion, and  given  rise  to  some  severe  strictures  ;  on  the  work,  as  tend- 
ing to  deprive  courts  of  justice  of  their  only  means  of  self-defence  ;  on 
the  reporter  as  being  actuated  by  a  spirit  of  hostility  to  the  judiciary. 
The  general  assembly,  I  know,  will  listen  without  prejudice  to  my 
argument  on  the  first  charge,  and  I  hope  will  excuse  me  if  I  add  a 
word  or  two  on  the  second. 

The  power  of  punishing  for  contempts,  in  the  extent  to  which  it  has 
been  carried,  it  is  believed  has  never  been  justified  by  the  plea  of  necess- 
ity.     Its  repugnance  to  all  the  fundamental  principles  which  secure 
private  rights  in  the  administration    of  justice,  is  so  apparent,  that  no 
other  argument  can  possibly  be  used.     The  offence  is  the  showing  a 
contempt  for  the  court.     Of  all  the  words  in  the  language,  this  is,  per- 
haps, the  most  indefinite.     Every  thing  that  can,  by  any  process  of 
reasoning,  be  considered  as  a  disrespect   to  the  court,  is  a  contempt. 
Blackstone  enumerates  seven  different  species  of  consequential,  as  con- 
tradistinguished from  direct  contempts  ;  each  of  them  comprehending 
a  countless  number  of  different  acts  as  distinct  from  each  other  in  their 
nature,  as  all  of  them  are  from  contempt,  according  to  its  strict  definition. 
For  instance,  the  second  division  of  consequential  contempts,  compre- 
hends those  committed  by  sheriffs,  bailiffs,  and  other  officers  of  the 
court,  by  deceiving  the  parties— by  acts  of  oppression — by  culpable 
neglect  of  duty,  &c.     In  short,  there  is  nothing,  from  an  indecorous 
gesture,  or  a  rude  hasty  word,  up  to  the  most  violent  opposition  to 
legal  authority,  that  cannot  be  brought  within  the  purview  of  the  law 
1  contempts.     Printing  a  false  account  of  the  proceedings  of  a  court, 
true   account  while  the  suit  is  pending,  without  permission,  as 
well  as  speaking  or  writing  contemptuously  of  the  court ;  treating  a 
piece  of  paper,  under  its  seal,  with  disrespect ;  and,  to  sum  up  all  in 
the  words  of  the  apologist  of  the  law  of  England,  any  thing  that  shows 
a  gross  want  of  regard  and  respect. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  157 

Now  I  put  it  to  those  who  contend  that  this  power  ought  to  be  vest- 
ed in  courts,  I  put  it  to  them  to  say,  what  is  the  conduct  that  will 
secure  a  man  against  its  exercise  in  the  hands  of  a  vain  or  vindictive 
judge  ?  "A  want  of  regard  and  respect  !"  Regard  and  respect  can- 
not be  commanded  but  by  moral  conduct,  and  not  always  by  that. 
The  most  correct  conduct  will  not  always  secure  it  ;  the  feeling  is  in- 
voluntary, and  cannot  be  punished.  But  you  must  not  show  that  you 
want  it ;  it  is  the  demonstration  that  is  culpable.  But  how  shall  I 
avoid  showing  it  ?  When  in  my  own  defence,  or  in  the  prosecution 
of  my  right,  I  differ  from  the  judge,  and  show  that  the  opinion  he  has 
given  is  absurd,  certainly  I  treat  him  with  very  little  regard  or  respect. 
I  can  feel  none  for  a  man  who,  by  some  miserable  sophistry,  deprives 
me  of  my  right ;  and  if  I  expose  it  to  the  world,  l^show  my  want  of 
respect ;  but  a  want  of  respect  is  a  contempt  :  I  am,  therefore,  liable 
to  be  punished  for  defending  my  right  in  the  only  way  that  justice 
requires  it  should  be  defended.  Oh!  say  the  advocates  of  this  tyrannical 
power,  you  must  distinguish  ;  attack  the  argument  of  the  judge  as  much 
as  you  please,  but  say  nothing  disrespectful  of  the  court.  But  what 
Jesuit  will  teach  me  how  I  may  tell  a  court,  that  it  has  decided 
against  the  plainest  principles  of  law,  without  showing  that  I  think 
they  have  been  ignorant,  careless,  prejudiced,  or  worse  ?  When  I 
know,  that  by  reason  of  either  of  these  faults  they  are  about  to  deprive 
me  of  my  fortune  or  my  life,  can  I  feel  regard  or  respect?  When  I 
state  the  reasons  by  which  I  demonstrate  it,  do  I  not — clothe  it  in 
what  language  I  will — do  I  not  make  that  want  of  regard  manifest? 
And  is  not  this,  according  to  the  very  terms  used  by  the  author  I  have 
quoted,  a  contempt  ?  It  is  amusing  to  observe  the  expedients  which 
have'  been  resorted  to,  to  reconcile  things  that  are  irreconcilable  ; 
great  respect  for  the  judge  and  contempt  for  his  opinion  ;  professions 
of  the  highest  veneration  and  regard,  coupled  with  allegations  that  show 
the  speaker  can  feel  neither  ;  introducing,  among  other  evils,  a  fawn- 
ing, hypocritical  cant,  equally  unworthy  of  the  suitors  and  the  judges. 

An  offence  so  ill  defined,  so  liable  to  be  imputed,  embracing  such 
a  variety  of  dissimilar  acts,  would  be  dangerous  and  oppressive  in  the 
extreme,  were  it  to  be  prosecuted  according  to  the  ordinary  forms  of 
law  ;  but  all  these  are  disregarded  ;  none  of  them  are  preserved,  and 
the  plainest  letter  of  the  constitution  is  violated  in  its  most  sacred  pro- 
visions. It  declares,  that  "  in  all  criminal  prosecutions  the  accused 
shall  have  the  right  of  meeting  the  witnesses  face  to  face,  nor  shall 
he  be  compelled  to  give  evidence  against  himself."  Yet  process  of 
attachment  for  contempt  issues  on  an  affidavit,  and  when  the  defendant 
is  brought  in,  it  is  not  to  meet  his  accuser  face  to  face,  but  in  direct  de- 
fiance of  the  constitution  to  "give  evidence  against  himself"  if  he  be 
guilty,  under  the  penalty  of  being  punished  for  a  "  high(a)  and  repeat- 

(a)  4  Bl.  287.  The  mode  of  proceeding  by  attachment  and  interrogatories  is  adopted  in 
our  courts — 1  Martin,  Territory  v.  Thurry — Same  v.  Nugent.  In  10  Mart.  123,  De  Ar- 
mas's case,  the  court  punished  for  an  indecorous  expression  by  suspension  for  a  year;  and 
this  case  expressly  supports  the  argument  I  have  used  in  the  first  part  of  this  report,  that 
the  Spanish  penal  laws  are  unrepealcd,  unless  they  are  inconsistent  with  some  statute  of  the 
state.  In  this  case  several  points  are  decided.  First,  that  the  law  of  Spain  giving  authority 
to  (he  court,  when  a  lawyer  is  "arrogant. .  .  /or  is  of  ill  fame,  or  is  tedious,  contradictory, 


158  INTRODUCTORY  REPORT  TO 

cd  contempt."  The  punishment  by  our  statutes  is  limited  to  fine  of 
fifty  dollars  and  ten  days'  imprisonment ;  but  from  the  case  cited  in 
Hie  note,  it  appears  that  the  Spanish  laws  are  still  in  force,  unless  there 
is  an  express  repeal  or  incongruity  between  them  and  our  statutes. 
With  respect  to  counsellors  and  attorneys  there  is  such  express  repeal, 
but  in  no  other  cases(a).  Now  in  the  variety  of  offences  created  by 
the  Spanish  statutes,  many  relate  to  the  courts  and  judges,  and  to 
their  officers  and  process  ;  all  these  by  the  sweeping  definition  of  con- 
tempts, may  be  properly  considered  as  such  ;  and  as  the  Spanish 
law  has  been  decided  not  to  be  repealed  by  our  law  of  contempts,  the 
aggravated  punishment  may,  in  those  cases,  be  inflicted  as  it  was  in  the 
one  referred  to  in  the  note.  But  without  this,  if  the  punishment  is 
confined  to  that  directed  by  our  statute — is  that  nothing  ?  Is  it  nothing 
to  be  deprived  of  liberty  for  ten  days,  without  conviction — without 
jury  ?  Is  it  nothing  to  be  forced  to  give  evidence  against  yourself  ? 
The  magnitude  of  the  punishment  is  comparatively  of  little  moment. 
It  is  the  principle  that  is  dangerous.  A  free  citizen  ought  never  to 
hold  his  liberty,  even  for  an  hour,  or  the  slightest  portion  of  his  pro- 
perty, at  the  will  of  any  magistrate.  But  those  I  have  noticed  are  not 
the  worst  features  of  this  species  of  punishment.  Vague  and  uncer- 
tain as  is  the  definition  of  the  offence,  yet  if  impartial  persons  were 
appointed  to  decide,  whether  any  given  word,  look,  or  gesture,  was 
contemptuous,  there  would  be  some  security  (a  slight  one  I  grant) 
against  oppression  ;  but  as  if  it  were  to  make  this  example  one  in  which 
every  principle  of  correct  procedure  was  to  be  violated,  the  person 
offended  is  constituted  the  only  judge — the  judge  with  appeal  ;  and 
lest  his  resentment  should  have  time  to  cool,  he  is  armed  with  the 
power  of  summary  process — and  if  we  want  evidence,  he  may  force 

or  speaks  too  much,  or  any  other  like  crime,"  is  in  force,  for  it  is  expressly  relied*  on  as 
justifying  the   court  for  suspending  the  defendant  from  practice.     Secondly,  it  is  decided 
that  this  law  is  a  penal  law.    Judge  Martin  says,  "  the  Spanish  law,  which  thus  forbids  the 
judge  to  suffer  any  contempt  of  his  authority,  is  a  penal  one,  for  it  cannot  be  carried  into 
effect  without  inflicting  some  penalty."     Thirdly,  the  full  ground  I  have  supposed  the  doc- 
trine of  contempt  to  occupy,  is  relied  upon  as  law,  for  the  same  judge  adds,  "  and  a  lawyer 
guilty  towards  the  court  of  any  contemptuous  action,  expression,  or  gesture,"  may  be  in- 
stantly punished,  by  suspension  at  least.    Fourthly,  the  important  point  I  argued  for,  that 
the  laws  of  Spain  are  not  repealed,  unless  there  is  a  perfect  incongruity,  or  an  absolute  re- 
peal, is  declared  to  be  law,  supported  by  at  least  a  dozen  authorities.    Nay,  this  case  goes 
further  than  I  thought  it  necessary  to  go,  and   preserves  the  Spanish  law,  even  where  the 
legislature  have  made   a  statute  on  the  same  subject ;  for  the  defendant  was  punished  for 
a  contempt  by  suspension,  for  a  year,  although  the  legislature  had  declared   that  contempts 
should  be  punished  by  fine  and  imprisonment,  because,  says  the  same  judgef,  "  there  are 
no  negative  words,  and  the  substance  of  the  new  act  may  well  stand  with  that  of  the  Par- 
tidas  :  the  two  provisions  are  not  contradictory,  and  may  fairly  exist  together."    And  he 
trengthens  this  reasoning  by  the  authority  of  the  superior  court,   1   Mart.   129.    Judge 
hew's  opinion  coincided  with  that  of  the  other  judgej  ;  and  he  states   the  rules  of  re- 
so  clear  and  methodical  a  manner,  that  if  the  book  containing  this  report  had  then 
;n  within  my  reach,  I  should  have  adopted  his  reasoning  instead  of  my  own  when  I  treat- 
th.s  part  of  the  subject ;  but  although  I  recollected  the  case,  I  did  not  choose  to  quote 
it  from  memory. 

(a)  Act  27th  March  1323. 

*  10  Martin's  Rep.  164.  t  Ibid.  169.  j  lb.  172. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  159 

the  defendant  to  produce  it.  Let  it  not  be  said,  as  it  sometimes  is, 
that  this  is  an  advantage;  that  the  defendant  may,  by  his  answers  to 
the  interrogatories,  exonerate  himself.  Not  so.  In  the  case  of  con- 
temptuous words  (and  I  see  no  reason  why  it  should  not  extend  to 
acts  also),  if  he  admit  the  speaking  or  the  writing,  the  court  have  the 
right  to  judge  of  the  intent  as  manifested  by  the  words  ;  and  although 
the  party  should  deny  any  disrespectful  in  ent  in  the  most  unequivo- 
cal terms,  the  court  may  declare  that  the  answer  is  false,  and  proceed  to 
impose  the  punishment(a)  ;  and  this  power  is  given,  too,  in  the  very  ca- 
ses where  it  ought  to  be  withheld.  If  it  were  confined  to  cases  of  ac- 
tual injury,  not  only  would  the  offence  be  more  susceptible  of  proof — 
not  only  would  there  be  a  corrective  in  public  opinion,  which  could 
be  fixed  upon  the  question,  whether  the  injurious  act  had  been  com- 
mitted or  not  ;  but  the  passions  even  of  the  party  injured,  if  he  were 
constituted  the  judge,  would  be  less  liable  to  be  roused.  It  is  a  trite, 
and  therefore,  probably,  a  true  observation,  that  men  forgive  injuries 
much  sooner  than  insults.  Judges  (although  by  vesting  them  with 
this  power  we  treat  them  as  angels)  are  men  ;  their  passions  will  be 
more  readily  roused  by  real  or  fancied  insults  than  they  would  be  by 
injuries,  and  nothing  can  be  more  at  war  with  justice  than  passion. 
Another  evil — there  is  no  end  to  them — is,  that  from  the  nature  of  the 
crime,  its  existence  must  depend  on  the  temper  of  the  judge  who  hap- 
pens to  preside.  Words  which  a  man  of  a  cool  and  considerate  dis- 
position would  pass  over  without  notice,  might  trouble  the  serenity  of 
another  more  susceptible  in  his  feeling  or  irritable  by  his  nature. 
There  is  no  measure  for  the  offence,  but  the  ever  variable  one  of  the 
human  mind.  The  judge  carries  the  standard  in  his  own  breast ;  and 
if,  by  close  observation,  you  have  discovered  its  probable  dimensions, 
your  work  is  but  begun,  for  every  succeeding  magistrate  has  his  own 
scale  for  the  weight  of  an  offence,  his  own  measure  for  the  extent  of 
the  punishment. 

I  do  but  waste  the  time  of  the  honourable  body  I  address,  in  show- 
ing the  dangerous  nature  of  this  undefined  power ;  for  its  apologists 
cannot  hide  its  hideous  features.  Blackstone  acknowledges  that  it  "  is 
not  agreeable  to  the  genius  of  the  common  law  in  any  other  instance  ;" 
but  he  does  not  attempt  to  justify  it  even  from  necessity,  and  contents 
himself  with  showing  that  it  is  of  "high  antiquity,  and  by  immemo- 
rial usage  has  become  the  law  of  the  land  ;"  that  is  to  say,  that  it  is 
common  law,  and  as  that  is  the  perfection  of  human  reason,  that  it 
must  be  good.  But  here,  where  we  are  not  satisfied  in  general  with 
this  reasoning,  as  summary  as  the  process  it  is  used  to  defend — here, 
and  on  this  occasion,  when  we  are  inquiring,  not  what  is,  but  what 
ought  to  be  law — here  some  other  argument  must  be  used  to  show  that 
we  ought  to  adopt  or  continue  this  oppressive  absurdity  :  and  that  ar- 
gument is  found  in  a  single  word — necessity.  In  the  present  improv- 
ed state  of  human  intellect,  people  do  not  so  readily  submit  to  the 
force  of  this  word  as  they  formerly  did.  They  inquire — they  investi- 
gate, and  in  more  instances  than  one,  the  result  has  been,  that  attributes 

(a)  1  Mart.,  Nugent's  case.  It  is  true,  the  words  used  there,  could  not  be  reconciled  to 
the  declaration  that  no  disrespect  was  intended  ;  but  if  this  case  was  correctly  decided  (and 
there  is  no  reason  to  doubt  it),  the  court  have  the  right,  in  all  case?,  to  judge  between  the 
answer  to  the  interrogatories  and  the  words  used. 


160  INTRODUCTORY  REPORT  TO 

before  deemed  necessary  for  the  exercise  of  legal  power,  were  found 
to  be  only  engines  for  its  abuse.  Not  one  of  the  oppressive  preroga- 
tives of  which  the  crown  has  been  successively  stripped,  in  England, 
but  was,  in  its  day,  defended  on  the  plea  of  necessity.  Not  one  of 
the  attempts  to  destroy  them,  but  was  deemed  a  hazardous  innovation. 
Let  us  examine  whether  this  power  does  not  partake  of  the  same  nature. 
A  recurrence  to  the  great  principle  of  self-defence,  which  we  have 
in  a  former  part  of  this  report  developed,  will  serve  to  show  with 
some  certainty,  as  it  is  thought,  to  what  extent  this  power  is  necessary 
or  proper.  Society  has,  if  our  reasoning  be  correct,  the  right  of  self- 
defence.  Every  department  created  by  that  society  for  its  government 
— every  individual  composing  that  society,  has  the  same  right,  defin- 
ed to  mean  the  right  of  defending  existence,  and  the  operations  necess- 
ary to  existence.  But  society,  as  the  superintending  power,  must 
have  for  the  purpose  of  securing  these  and  all  other  rights  belonging  to 
departments  and  to  individuals,  the  further  power  to  punish.  Society 
alone  has  this  right.  Try  the  law  of  contempts  by  this  simple  rule. 
Courts  of  law  are  the  organs  of  one  of  the  departments  of  society, 
and,  to  avoid  confusion,  we  will  select  for  our  example  courts  of  ex- 
clusively civil  jurisdiction  ;  such  courts  have  the  right  to  defend  their 
own  existence,  and  to  repress  every  thing  that  interferes  immediately 
with  the  exercise  of  their  legal  powers.  They  have  this  right,  as  a 
legitimate  part  of  society,  by  the  principles  of  natural  law  ;  and  if  it 
be  curtailed  by  any  constitutional  provision,  it  is  a  great  defect,  be- 
cause self-preservation  very  frequently  requires  immediate  efforts  that 
would  make  an  application  to  any  other  power  ineffectual.  Every 
thing,  then,  that  is  necessary  and  proper  to  defend  its  existence,  and 
secure  the  free  performance  of  its  functions,  can  with  no  greater  pro- 
priety be  denied  to  a  court  than  there  would  be  in  forbidding  an  indi- 
vidual to  defend  his  life  against  the  attack  of  an  assassin.  But  neither 
the  court  nor  the  individual  have  necessarily  the  right  to  punish,  either 
after  the  attempt  has  been  repelled  or  after  it  has  been  carried  into  exe- 
cution. That  is  the  duty  and  the  right  exclusively  vested  in  the  whole 
society.  An  individual  has  the  right  to  defend  himself  against  an 
attack  upon  his  liberty  or  life  ;  but  after  he  has  successfully  resisted  it, 
he  has  no  right  to  punish  ;  yet  liberty  and  life  are  considered  as  suffi- 
ciently protected  by  this  limited  power.  Courts  of  justice  have  the 
same  right  to  repel  all  attempts  to  interrupt  the  performance  of  their 
functions.  They  are  incorporeal  beings,  whose  existence  is  only  in 
the  performance  of  their  functions — that  is  their  life — that  is  their 
liberty.  They  are,  or  ought  to  be,  armed  with  every  power  necessary 
to  detend  them.  Noise,  interruptions,  violence  of  every  kind,  must 
be  repressed  ;  obedience  to  all  lawful  orders  which  are  necessary  for 
the  performance  of  their  functions,  must  be  enforced.  Thus  far  the  law 
of  self-defence  goes,  but  no  further.  Is  the  violence  over — has  the  in- 
terruption ceased — is  the  intruder  removed — has  the  order,  which  was 
disobeyed,  been  complied  with  ? — here  the  power  of  the  incorporeal 
being,  as  well  as  that  of  the  individual  in  the  analogous  case,  ceases, 
and  the  duty  of  the  sovereign  power  begins.  That  alone  must  punish — 
that  alone  can  define  offences  and  fix  the  penalty  for  committing  them. 
An  infringement  of  the  legal  rights  of  a  court  of  justice  is  an  offence,  and 
that  government  is  radically  defective  which  places  the  power  to  punish 
it  in  the  hands  of  the  offended  party.  Here,  then,  we  find  the  limit  of  that 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  161 

necessity,  which  is  so  much  insisted  on,  and  so  little  understood.  There 
is  a  necessity  that  courts  should  have  the  power  of  removing  interrup- 
tions to  their  proceedings,  because,  unless  they  can  perform  their  func- 
tions, they  cannot  exist,  but  there  is  none  that  they  should  have  the 
power  to  punish  those  interruptions  ;  the  laws  must  do  that,  by  the 
instrumentality  of  the  courts,  but  in  the  form  prescribed  by  law. 

If  the  argument  has  been  as  clearly  expressed  as  its  force  is  felt,  it 
must  be  convincing  to  show — that  all  those  offences,  distinguished  by 
the  name  of  contempts,  ought  to  be  banished  from  our  penal  law,  which 
they  disfigure  by  the  grossest  departure  from  principle  ;  that  courts 
ought  to  be  empowered  to  remove  all  obstructions  to  their  proceedings; 
that  all  such  acts,  as  well  as  those  tending  to  interrupt  the  course  of 
judicial  proceeding,  to  taint  its  purity,  or  even  to  bring  it  into  disre- 
pute, should  be  punished  only  by  the  due  course  of  law;  and  that 
proper  punishments,  inflicted  by  the  regular  operation  of  law,  will  de- 
ter from  these  acts  much  more  effectually  than  the  irregular  agency  of 
the  offended  party,  who  sometimes,  from  delicacy,  will  abstain  from 
enforcing  the  penalty  of  the  law — sometimes,  from  the  indulgence  of 
passion,  will  exceed  it. 

It  is  on  these  principles  that  this  part  of  the  code  has  been  framed. 
It  vests  ample  powers  of  repression  in  the  court.  They  may  remove 
every  interruption  to  their  proceedings  ;  they  may  enforce  prompt 
obedience  to  their  orders  ;  they  may,  if  simple  removal  is  not  found 
sufficient,  restrain  by  imprisonment ;  and,  after  this,  a  regular  trial  and 
punishment  follows  for  the  offence.  Here  is  no  angry  altercation. 
All  is  done  with  the  composure  necessary  to  the  dignity  of  justice.  The 
judge  is  not  the  accuser  ;  the  accuser  is  not  the  judge.  All  that  class 
of  offences,  too,  which  consist  in  insulting  expressions,  are  provided 
for.  But  here  again  an  impartial  jury  decide,  as  well  on  the  nature  of 
the  words,  as  on  the  intent  with  which  they  were  used.  The  judge 
cannot  improperly  indulge  his  feelings,  or  restrain  them,  to  the  injury 
of  public  justice  ;  and  the  offender  against  laws  for  preserving  the 
order  and  dignity  of  the  judiciary,  is  liable  to  the  same  penalties,  en- 
titled to  the  same  rights,  and  judged  by  the  same  laws,  that  apply  to 
other  offenders. 

This  chapter,  then,  far  from  derogating  from  the  respect  due  to  the 
judiciary,  is  calculated,  in  all  its  provisions,  to  enforce  it  ;  and  the  in- 
sinuation, that  its  author  could  be  actuated  by  any  hostility  to  that  de- 
partment, is  not  only  groundless,  but  absurd.  If,  indeed,  it  is  hostility 
to  a  department  of  government,  ta  desire  that  none  but  its  proper  pow- 
ers should  be  vested  in  it  by  law,  or  still  less,  should  be  exercised 
without  law  ;  if  it  be  hostility  to  the  judiciary  to  divest  them  of  the 
odious  accumulation  of  the  offices  of  judge,  party,  legislator,  and 
accuser,  in  the  same  person  ;  to  protect  their  functions  in  their  exer- 
cise, and  punish  all  attempts  to  interrupt  them  ;  then  is  this  chapter 
dictated  by  a  spirit  of  the  most  determined  hostility. 

The  next  class  of  offences  are  those  which  affect  the  public  tranquil- 
lity ;  and  they  form  the  subject  of  the  sixth  title.  The  first  chapter 
comprises  two  offences  of  this  nature — unlawful  assemblies  and  riots. 
The  first  being  a  preparatory  step  to  the  second  offence.  They  are 
both  so  clearly  defined  as  not  to  be  easily  confounded  ;  and  although 
both  are  taken,  in  their  general  features,  from  the  English  law,  there 
are  several  modifications  introduced,  which,  it  is  hoped,  will  be  con- 
V 


163  INTRODUCTORY  REPORT  TO 

sidered  as  improvements.  If  the  object  of  the  one  or  the  other  offence  be 
in  opposition  to  the  collection  of  taxes,  or  to  a  sentence  of  a  court,  or  for 
the  purpose  of  effecting  a  rescue,  a  definite  increase  of  punishment  is  or- 
dained, instead  of  leaving  this  entirely  to  the  discretion  of  the  court, 
which  would  have  induced  the  necessity  of  an  enlargement  of  that 
discretion  in  fixing  the  original  punishment,  so  as  to  embrace  the  two 
cases.  To  encourage  obedience  to  the  law,  it  is  provided,  that  if  any 
one,  either  voluntary  or  in  obedience  to  the  admonition  of  a  magis- 
trate, shall  leave  an  unlawful  assembly,  without  any  intent  to  return, 
before  a  riot  has  been  committed,  that  he  shall  avoid  the  punishment 
due  to  his  assisting  in  the  first  offence.  An  increase  of  punishment 
is  also  directed  against  those  who  shall  appear  armed  at  such  unlawful 
assembly  or  riot ;  and  to  avoid  all  equivocation,  the  term  is  one  of 
those  that  are  designated  as  being  used  in  the  sense  described  in  the 
Book  of  Definitions. 

A  proceeding,  analogous  to  that  of  reading  the  riot  act  in  England, 
is  directed  to  be  had  by  the  magistrate,  to  disperse  an  unlawful  assem- 
bly, or  put  an  end  to  a  riot  ;  but  it  is  one  that,  it  is  thought,  is  better 
calculated  to  strike  the  attention,  while  its  purport  is  equally  or  more 
intelligible  to  such  an  assemblage;  and  it  consists  in  the  display  of  a 
flag,  accompanied  by  a  short  proclamation  ;  the  effect  of  disobedience 
to  which  is  pointed  out  ;  and  in  the  correspondent  chapter  of  the 
Code  of  Procedure  all  the  forms  are  given,  as  well  as  the  mode  point- 
ed out  for  calling  out  and  employing  the  military,  in  aid  of  the  civil 
power,  when  the  first  is  insufficient  to  restore  order. 

An  article  in  this  chapter  imposes  a  penalty  on  those  exhibitions  of 
pugilism  which  disgrace  any  society  in  which  they  are  suffered. 

Public  disturbance  is  a  minor  species  of  this  general  offence,  and  it 
is  made  punishable  by  a  slighter  penalty,  and  may  be  repressed  by  the 
summary  interference  of  the  magistrate. 

Articles  containing  negative  provisions  prevent  any  interference  with 
legal  meetings. 

Offences  against  the  right  of  suffrage  form  the  important  subject  of 
the  seventh  title.  Bribery,  violence,  undue  influence,  are  endeavour- 
ed to  be  guarded  against  by  enactments,  sufficiently  explicit  to  be  un- 
derstood without  commentary,  and  by  penalties  proportioned  and  ana- 
logous to  the  several  offences. 

The  eighth  title  would  require  much  elucidation,  if  the  subject  of  it 
had  not  already  been  submitted  to  the  legislature,  and  if  its  provisions 
had  not  received  their  sanction  and,produced  some  strictures  ;  but  be- 
ing founded  in  true  principles,  the  more  closely  it  has  been  examined 
the  more  clearly  has  its  utility  appeared  ;  and  if  a  novelty,  it  is  not 
one  of  those  that  can  be  characterised  as  dangerous  or  useless.  While 
we  all  profess  a  respect  almost  amounting  to  adoration  for  the  liberty 
of  the  press,  we  may  be  permitted  to  wonder  that  it  has,  as  yet,  been 
protected  by  no  penal  enactments,  while  every  code  abounds  with  laws 
o  guard  against  its  abuse,  and  frequently,  too,  under  that  pretext,  to 

jstroy  it.     Our  state  has   been    more  particular   than   most   of  the 

TS,  in  guarding  this  precious  privilege,  by  its  constitution  ;  but  the 

itution  could,  of  course,  contain  no  penalty  for  a  breach  ;  that  care 

left  to  the  legislature.     We    cannot  too  often  recur  to  the  very 

words  of  our   fundamental  law  on  that   subject;   full  of  foresight  and 

wisdom,  they  are  calculated  to  defeat  every  attack  that  might  be  made 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  103 

by  open  violence  or  insidious  attempts  upon  this  safeguard  of  our 
liberties  :  "Printing  presses  shall  be  free  to  every  person  who  under- 
takes to  examine  the  proceedings  of  the  legislature,  or  any  branch  of 
the  government,  and  no  law  shall  ever  be  made  to  restrain  the  right 
thereof  "(a).  But  if  such  a  law  should  be  made  ;  if  a  wicked  and  cor- 
rupt legislature  should  try  to  repress  any  discussion  of  their  proceed- 
ings by  heavy  penalties  ;  and  if  a  subserving  judiciary  should  be  found 
to  execute  their  unconstitutional  statutes — where  is  the  remedy? 
Should  there  be  none  ?  Why  should  disobedience  to  this  constitutional 
law  go  unpunished  ?  Surely  the  immorality  of  the  act,  and  most  sure- 
ly its  injurious  tendency,  are  sufficiently  apparent  to  call  for  and  to 
justify  repression  and  punishment.  Surely  the  legislature,  which 
provides  a  sanction  for  this  wise  and  highly  important  law,  are  per- 
forming a  sacred  duty. 

Again — this  was  a  favourite  theme  with  the  framers  of  our  consti- 
tution. They  seem  loth  to  quit  it  while  any  thing  remains  to  be  said, 
that  could  show  the  high  regard  they  had  for  this  privilege.  They 
add:  "The  free  communication  of  thoughts  and  opinions  is  one  of 
the  invaluable  rights  of  man,  and  every  citizen  may  freely  speak,  writfe, 
and  print,  on  any  subject,  being  responsible  for  the  abuse  of  that  liber- 
ty." But  if  that  freedom,  thus  intended  to  be  secured,  is  endeavour- 
ed to  be  shackled  by  threats,  by  actual  violence,  by  the  illegal  exercise 
of  judicial  power,  under  pretence  of  an  alleged  abuse  ?  Are  not  laws, 
tending  to  restrain  these  abuses,  worthy  of  the  attention  of  the  legis- 
lature when  it  is  forming  a  system  of  penal  law  ?  Either  the  privi- 
lege was  not  worth  all  the  care  and  attention  which  has  been  given  to 
it  in  the  constitution,  or  it  is  worth  that  of  the  legislature  to  protect 
it.  Without  some  law  of  this  kind,  the  constitutional  provision  can 
have  no  efficient  operation.  But  with  the  aid  of  the  penal  law,  it  re- 
ceives the  force  and  effect  which  its  importance  merits. 

A  very  superficial  attention  to  one  of  the  articles,  has  produced  an 
objection  that  seems  to  have  had  some  weight,  but  which  is  entitled  to 
very  little.  The  article  imposes  a  penalty  on  any  judicial  or  other 
officer  who,  under  pretence  of  any  law  which  contravenes  the 
constitution,  in  this  respect,  shall  restrain  or  prevent  the  exercise 
of  the  liberty  of  discussion  secured  by  the  constitution.  Now,  it  is 
said,  if  a  legislature  be  found  wicked  enough  to  pass  such  an  uncon- 
stitutional law,  they  will  also,  to  secure  its  execution,  repeal  that  part 
of  your  code,  and  your  penalty  then  goes  with  it.  This  objection  was 
anticipated  in  the  first  report,  and  it  was  answered,  that  attacks  upon 
the  privileges  of  the  people  are,  for  the  most  part,  insidiously  made 
under  pretence  of  public  good,  and  clothed,  at  least,  with  a  specious 
regard  for  constitutional  forms  ;  and  that  a  repeal  of  this  part  of  the 
code  would  take  off  the  mask  and  put  the  friends  of  the  people  on  their 
guard,  and  therefore  it  would  not  be  attempted  ;  or,  if  it  were,  that 
the  repeal  of  this  part  of  the  code,  like  the  attack  of  an  outpost,  would 
put  the  main  body  on  their  guard.  Another  reason  may  now  be  add- 
ed, that  a  law  infringing  that  important  part  of  the  constitution  might 
be  passed,  not  from  any  direct  hostility  to  the  liberty  of  the  press  in 
general,  but  for  the  purpose  of  some  party  advantage  or  other  tempo- 
rary motive,  in  troublesome  times  ;  and  in  such  case,  it  would  not  be 

(a)  Constitution  of  Louisiana,  art.  vi.  sect.  21. 


164  INTRODUCTORY  REPORT  TO 

accompanied  by  the  repeal  of  the  code.  Again — the  existence  of  this 
article  in  the  code,  at  least,  forms  an  additional  security,  for  members 
miclit  be  found  to  concur,  from  interest  or  passion,  in  abridging  the 
liberty  of  the  press,  who  might  not  go  the  length  of  repealing  the 
article  ;  and  every  additional  security,  which  is  attended  with  no  in- 
convenience, and  none  can  be  even  supposed  here,  is  of  the  highest 
importance.  And  finally,  admit  that  it  may  be  rendered  nugatory  by 
a  repeal  ;  yet  if  it  should  be  of  use  until  that  repeal  takes  place  ;  if  it 
should  defeat  one  unprincipled  attempt  to  destroy  this  sacred  privilege  ; 
if  it  should  only  give  time  for  its  friends  to  rally  in  its  defence — it 
would  be  of  inestimable  value. 

As  expression,  also,  of  legislative  opinion,  its  importance  is  not 
small  ;  and  the  vigilance  which  it  testifies  in  the  guarding  of  consti- 
tutional rights,  will  not  only  reflect  honour  on  those  who  pass  it,  but 
teach  the  people  how  to  appreciate  those  rights  which  they  see  thus 
carefully  enclosed  with  penalties. 

One  more  reflection  and  I  dismiss  the  subject,  with  a  simple  reference 
to  the  chapter,  which  contains  nothing  that  needs  an  explanation  to 
elucidate  any  further  the  several  offences  and  their  punishment.  That 
reflection  is  this,  that  there  is  no  one  possible  inconvenience  attending 
the  execution  of  any  of  the  enactments  of  this  chapter.  No  penalty 
can  fall  on  any  person  who  does  not  openly  and  wilfully  violate  one  of 
the  most  important  parts  of  his  country's  constitution;  no  ambiguity  in 
the  definition  of  the  offences;  no  undue  severity  in  the  punishment.  It 
is  new  !  This  is  the  "  very  head  and  front  of  its  offending  ;"  but  it  is 
not  dangerous.  It  is  believed  to  be  necessary  and  highly  useful. 

The  ninth  title  relates  to  offences  affecting  public  records  ;  on  which 
subject  we  have  now  three  provisions  in  the  19th  and  20th  sections  of 
the  act  of  May  1805,  and  the  8th  section  of  the  act  of  19th  March  1818. 
By  the  first  it  is  forbidden  feloniously  to  steal,  take  away,  alter,  falsify, 
or  otherwise  avoid  any  record,  writ,  process,  or  any  proceeding  in  any 
of  the  courts,  under  the  penalty  of  fine  to  three  thousand  dollars,  and 
imprisonment  at  hard  labour  not  exceeding  two  years. 

The  second  provides,  that  those  who  shall  deface,  alter,  or  embezzle 
any  record,  or  enrolment,  or  matter,  or  instrument  recorded,  or  registry 
thereof,  with  intent  to  defraud,  shall  pay  a  fine  to  one  thousand  dollars, 
be  imprisoned  at  hard  labour  to  two  years,  and  be  rendered  incapable 
of  holding  any  office. 

By  the  third,  if  any  person  shall  forge,  or  counterfeit,  any  public 
record  or  attestation  of  a  public  officer,  where  such  attestation  is  legal 
proof,  he  shall  be  punished  by  solitary  imprisonment  to  one,  and  at 
hard  labour  not  less  than  two  nor  more  than  fourteen  years. 

Thus,  taking  these  sections  together,  we  find,  first,  that  to  steal  or 

alter  the  record  of  a  court  may  be  punished  by  a  fine  of  one  cent,  and 

mpnsonment  for  one  hour,  but  that  the  fine  cannot  exceed  three  thou- 

dollars,  nor  the  imprisonment  two  years  ;  whereas  the  minimum 

punishment,  for  forging  a  record  of  enrolment,  is  exactly  the  maximum 

is  inflicted  for  stealing  or  forging  the  record  of  a  court ;  unless  the 

general  expression,  record,  in  the  third  act,  should  be  construed  also 

e  court  records  ;  in  which  case  there  would  be  the  difference  I 

have  stated,  between  the  punishments  for  stealing  and  for  forging  the 

same  record. 

Secondly,  that  there  is  a  difference  in  the  punishments  of  the  two 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  165 

offences,  designated  in  the  first  two  sections  respectively,  that  does  not 
seem  to  be  warranted  by  any  distinction  between  them,  in  moral  guilt, 
or  public  or  private  injury. 

Thirdly,  that  in  a  fair  construction  of  the  words  employed,  all  three 
of  the  sections  include  the  same  offence,  to  wit,  forging  the  record  of  a 
court.  The  first  designates,  as  one  of  the  acts  it  forbids,  to  alter, 
falsify,  or  otherwise  avoid  any  record,  or  other  proceeding  in  any 
court.  The  second,  to  deface,  or  alter,  or  embezzle  any  record,  en- 
rolment, or  matter  of  record,  &c.  The  third,  to  forge,  or  counterfeit 
any  public  record.  All  of  these  have  different  penalties.  Are  they 
all  to  be  inflicted  ?  The  reasoning  of  the  court(a),  above  quoted, 
would  seem  to  decide  the  affirmative  of  this  question,  for  none  of 
them  contain  a  repealing  clause,  and  two  of  them  are  in  the  same 
act.  Yet,  if  they  are,  what  confusion  must  ensue.  This  evil  is  reme- 
died by  the  code  ;  these,  and  all  other  offences  of  the  same  nature,  are 
clearly  described;  all  the  words  used  in  the  description  are  defined;  and 
the  distinction,  between  the  guilt  and  mischief,  where  an  officer,  who 
has  the  custody  of  the  records,  betrays  his  trust,  by  falsifying  or  de- 
stroying them;  and  the  same  crime  committed  by  any  other  individual, 
is  marked  by  an  increase  of  punishment.  In  this,  as  well  as  in  a  sub- 
sequent title,  the  law  is  simplified  by  using  a  general  description  of  the 
records  intended  to  be  protected  against  falsification  and  other  injury, 
rather  than  by  an  enumeration,  which  is  generally  made  imperfect  in  a 
few  years  by  other  instruments  coming  in  use,  which  it  is  also  necess- 
ary to  protect.  False  certificates  of  recording  officers,  personifications 
to  execute,  or  acknowledge,  or  prove  authentic  instruments,  are  pro- 
vided against;  and  a  section,  describing  what  shall  be  deemed  a  fraudu- 
lent use  of  a  forged  record,  will,  it  is  believed,  clear  up  doubts  that 
have  heretofore  existed  on  that  subject. 

The  title  of  offences  against  the  current  coin  of  the  state,  is  so  drawn 
as  to  embrace  every  offence  of  this  nature.  There  is,  among  others,  a 
section  making  it  penal  to  possess  counterfeited  coin  with  the  intent  to 
pass  it  as  true,  either  in  the  state,  which  is  the  provision  of  the 
present  law,  or  to  send  it,  for  that  purpose,  into  any  other  of  the 
states,  or  into  a  foreign  country.  This  is  new  in  penal  legislation,  but 
it  was  thought  honourable  to  the  state  to  prevent  its  being  made  a  den, 
in  which  coiners  might  carry  on  their  fraudulent  manufactory  to  the 
injury  of  other  countries,  whether  enemies  or  friends;  and  as  one  step 
towards  the  application  of  that  golden  rule,  "  to  do  as  we  would  be  done 
by,"  to  nations  as  well  as  to  individuals.  These  advances  need  only 
be  begun;  they  will  be  reciprocated  ;  each  will  promote  its  interest  as 
well  as  its  honour,  by  making  or  meeting  these  advances,  and  from  the 
most  trifling  beginnings,  consequences  most  important  to  human  happi- 
ness may  result. 

The  great  evil  to  the  revenues  of  the  state,  arising  from  a  misappli- 
cation of  public  moneys  by  those  entrusted  to  receive  them,  was  seri- 
ously considered,  and  a  preventive  remedy  is  proposed,  which,  it  is 
thought,  will  in  a  great  measure  take  away  the  temptation  to  the  offence. 
A  forced  deposite  of  all  moneys,  by  leaving  no  large  sums  in  the  pos- 
session of  the  party,  will  leave  him  little  inducement  to  incur  the 
penalty;  and  the  measures  described  in  the  code,  are  such  as  cannot  fail 

(a)  10  Martin. 


166  INTRODUCTORY  REPORT  TO 

to  brine  on  detection  in  case  of  disobedience.  After  the  deposite  is 
made,  it  cannot  be  withdrawn  without  a  deliberate  crime,  the  com- 
mission of  which,  in  the  nature  of  things,cannot  remain  concealed.  In 
ordinary  cases,  this  breach  of  trust  is  made  with  the  design  of  replacing 
the  money  before  it  can  be  called  for;  and  this  honest  intention  palliates 
to  the  party  the  irregularity  of  the  conduct.  But  if  this  was  to  be  pre- 
ceded, before  any  advantage  could  be  made  of  the  money  by  a  false 
check  that  must  remain  on  file  and  insure  the  conviction  of  the  party, 
he  will,  nine  times  in  ten,  refrain  from  the  offence,  and  the  revenue 
will  be  free  from  this  risk. 

Extortion  by  collectors,  or  violence  against  them,  are  equally  pro- 
vided against. 

Under  the  head  of  offences  which  affect  commerce  and  manufactures, 
we  have,  first,  I  hose  which  affect  foreign  commerce. 

These  are  offences  against  the  inspection  laws;  shipping  articles  with- 
out inspection,  when  it  is  required  by  law;  and  counterfeiting  marks  or 
brands  of  the  proper  officers.  The  frauds  which  have  been  but  too 
common  in  packing  articles  of  little  value  in  boxes  or  bales,  intended 
for  exportation,  are  punished  by  an  adequate  penalty.  Destroying  a 
vessel  on  the  high  seas,  by  the  master  or  mariners  ;  frauds  against  in- 
surers, either  in  or  out  of  the  state,  by  shipping  articles  of  inferior 
value;  and  any  act  done  in  the  state,  preparatory  to  a  fraud  to  be  com- 
pleted abroad  ;  or  any  such  act  done  out  of  the  state,  if  the  fraud  is  to 
be  completed  within  its  limits,  make  the  party  liable,  and  this  in  virtue 
of  a  principle  that  has  been  before  discussed. 

A  chapter  regulates  the  conduct  of  tavern-keepers  in  regard  to  sea- 
men ;  and  refers  to  the  existing  laws  on  that  subject,  it  being  rather  a 
matter  of  police  than  of  penal  law. 

A  short  chapter  contains  the  usual  and  simple  penalties  against  using 
false  weights  and  measures  ;  and  another  has  some  new  enactments  to 
punish  the  fraudulent  use  of  false  marks  on  merchandize,  which  usually 
denote  the  quantity  or  quality  of  the  article  contained  in  the  package. 

The  next  class  of  offences,  which  may  be  distributed  under  the  head 
of  those  which  injure  the  commerce,  manufactures,  or  trade  of  the 
country,  are  those  affecting  the  validity  of  written  contracts — a  most 
important  title  in  the  criminal  law  of  modern  times,  although  scarcely 
known  in  the  simple  code  of  our  ancestors,  in  the  middle  ages.  Among 
the  offences  of  this  class,  forgery  is  the  most  prominent.  As  was  natu- 
ral, it  has  closely  followed  the  footsteps  of  paper  credit.  It  has  increased 
with  increasing  commerce,  and  thrives  most  where  the  circulation  of 
bank-paper  is  most  widely  spread.  In  England  it  was  an  offence  at  com- 
mon law  ;  but  it  could  not  be  very  prevalent  at  a  time  when  commerce 
was  barter,  and  when  the  evidences  of  public  and  private  credit,  being 
alike  unknown,  little  inducement  was  offered  for  the  exercise  of  the 
ingenuity  of  the  very  few  who  had  learning  enough  to  commit  the  of- 
fence ;  being  then  neither  felt  nor  apprehended  as  a  serious  evil,  it  was 
punished  only  as  a  misdemeanor. 

By  the  first  statute,  (8  Richard  II.  c.  4.)  it  would  appear,  that  this 
crime  was  only  apprehended  from  judges  and  clerks,  and  in  the  falsifi- 
cation of  court  records  alone.  From  the  provisions  of  the  statute  of  8 
Henry  VI.  we  may  judge  that  it  began  to  make  some  progress  ;  that 
others,  besides  judges  and  clerks,  tampered  with  the  records,  and  that 
the  evil  was  sufficiently  prevalent  to  require  a  severe  penalty  ;  for  by 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  167 

that  statute  the  offence,  by  whomsoever  committed,  is  raised  in  the 
calendar  of  crimes  to  the  rank  of  felony.  But  by  the  operation  of  a 
clerical  privilege,  this  law  had  the  effect  of  exempting  from  punishment 
the  only  persons  who  were  enabled  to  commit  the  offence  ;  while  its 
penalties  could  be  enforced  against  those  only  who  were  under  a  physical 
incapacity  of  incurring  them  :  although  the  crime  could  be  committed 
by  none  who  could  not  read,  the  knowing  how  to  read  was  the  certain 
means  of  escaping  punishment ;  which  was  only  inflicted  on  those  who 
demonstrated,  by  their  ignorance" of  that  art,  that  they  were  not  guilty. 
This  absurdity  continued  until  late  in  the  reign  of  Elizabeth.  We  then 
find  the  government  first  beginning  to  pay  some  attention  to  the  subject. 
Their  statutes,  however,  protected  no  species  of  written  contracts,  until 
experience  had  shown  that  it  became  the  object  of  the  offence,  and  its 
prevalence  forced  them  to  legislate  ;  but  even  then,  they  carefully  re- 
stricted their  protection  to  that  species  of  writing  which  called  for  their 
immediate  attention,  leaving  all  others  to  form  the  subject  of  another 
law,  when  their  introduction  into  commerce  should  tempt  the  hand  of 
the  forger  to  counterfeit  them;  so  that  the  English  statutes  might  serve 
as  a  chronological  catalogue  of  the  securities  successively  in  use,  from 
the  time  of  the  first  statute  to  the  present  day. 

The  first  enactments  on  this  subject  are,  I  believe,  the  statutes  of 
Richard  II.  and  Henry  VI.,  before  referred  to.  Neither  of  these  relates 
to  any  other  forgery  than  that  of  records.  From  that  time  no  other 
writing  seems  to  have  claimed  the  attention  of  the  law,  until  the  fifth 
year  of  the  reign  of  Elizabeth,  when  the  forgery  of  deeds,  charters, 
sealed  writings,  court  rolls  and  wills,  by  one  section  ;  and  by  another, 
that  of  obligations,  acquittances  and  releases,  was  punishable  by  muti- 
lation, imprisonment  and  forfeiture.  During  this  reign  there  is  but 
one  other  law  on  the  subject(«),  which  relates  to  soldiers'  and  mariners' 
passes,  and  makes  the  forgery  of  them  felony,  without  benefit  of  clergy. 
From  this  time,  for  more  than  a  century,  I  find  no  statute  referred  to 
in  the  treatises  on  this  subject;  but  they  multiply  afterwards  in  an  extra- 
ordinary ratio.  There  are  two  in  the  reign  of  William  III. — five  in 
that  of  Anne — eight  under  the  first  George — ten  in  the  reign  of  his  im- 
mediate successor — and  thirty-seven  from  the  1st  to  the  45th  of  George 
III.,  since  which  1  have  no  account,  making,  in  all,  more  than  sixty 
statutes,  bearing  on  different  modifications  of  the  same  offence. 

This  legislation  was  inevitably  confused  from  its  prolixity.  It  was 
also,  from  its  nature,  in  some  degree  inefficient.  By  attempting  the 
difficult,  perhaps  the  unattainable,  object  of  protecting  every  species 
of  writing  by  name,  it  constantly  left  some  unprovided  for,  and,  of 
course,  open  to  the  enterprise  of  offenders  ;  until  the  statute,  like  the 
'  Poe.nct  pede  Claudo'  of  the  poet,  came  limping  behind  it  with  a  new 
penalty.  But  the  application  of  this  penalty  was  attended  with  new 
difficulties  from  the  defects  of  the  system.  As  each  penalty  was  de- 
nounced against  those  who  falsified  a  particular  instrument,  it  was 
necessary,  in  the  act  of  accusation,  to  charge  that  the  writing  in  ques- 
tion was  one  of  that  particular  class.  A  mistake  in  this  nomenclature 
has  proved  fatal  to  more  than  one  prosecution. 

Another  source  of  uncertainty  in  this  system  is,  that  a  change  of 
circumstances  and  habits  in  the  country,  may  render  the  law  obscure 
and  sometimes  unintelligible.  The  name  by  which  certain  writings  are 

(a)  Stat.  39  Eliz. 


168  INTRODUCTORY  REPORT  TO 

designated  in  the  act,  may  be  well  understood  at  the  time  of  its  pass- 
age, and  afterwards,  by  disuse,  become  wholly  unknown,  at  least  to 
the' people  ;  for  instance,  in  the  territorial  law  of  1805  it  is  made 
forgery  to  counterfeit  a  cotton  receipt.  This  instrument  is  understood 
in  those  parts  of  the  state  where  cotton  is  the  staple  commodity,  to 
mean  a  kind  of  negotiable  receipt,  given  by  the  owners  of  cotton  gins, 
to  their  customers,  for  cotton  brought  to  be  cleaned  ;  but  in  the  lower 
part  of  the  country,  I  doubt  whether  it  is,  even  now,  generally  under- 
stood, and  certainly  it  would  not  be,  if  either  that  species  of  culture 
were  abandoned,  or  if,  by  the  invention  of  some  cheap  machinery, 
every  planter  should  clean  his  own  cotton.  In  either  of  these  cases, 
the  term  might  be  applied  to  some  instrument  for  which  it  was  never 
intended. 

Our  legislature  might  have  avoided  these  inconveniences,  but  un- 
fortunately they  proceeded  on  the  same  vicious  plan,  of  enumeration, 
which  had  been  adopted  in  the  statute  law  of  England  ;  and  as  might 
have  been  expected,  with  the  same  effect ;  although  in  framing  our  law 
of  1805  we  had  the  English  catalogue  before  us,  and  might  cull  from 
her  statutes  all  the  writings  which  we  wish  to  add  to  those  in  use 
among  ourselves,  for  the  purpose  of  protecting  them  against  forgery  ; 
yet  since  that  period,  two  other  statutes(a)  have  been  found  necesssary 
to  increase  the  list ;  and  in  progress  of  time,  our  statute  book,  unless 
some  other  system  be  resorted  to,  may  on  this  head,  vie  in  prolixity 
with  the  "  statutes  at  large." 

The  means  of  avoiding  these  inconveniences  are  so  obvious,  that  I 
was,  at  first,  inclined  to  think  that  some  insurmountable  objection, 
which  I  could  not  discover,  must  have  prevented  their  adoption.  But 
when  the  most  deliberate  exercise  of  my  judgment  could  suggest  no 
such  objection,  I  ventured  upon  the  description  of  the  offence,  not  by 
enumerating  the  different  writings  which  should  be  its  object,  but  by 
a  definition,  intended  to  embrace  all  those  which  it  is  the  policy  of  the 
law  to  protect  by  the  high  penalties  attached  to  the  crime  of  forgery, 
and  to  exclude  all  those  which,  from  their  nature,  ought  not  to  be 
the  subject  of  that  sanction.  This  change  is  offered  with  some  con- 
fidence, because  the  foundation  of  it  is  laid  in  the  definition  of  this 
crime  by  the  common  law,  which,  as  far  as  my  reading  and  observation 
have  gone,  has  given  rise  to  much  less  uncertainty  of  decision,  than  has 
taken  place  in  the  practice  under  the  statutes.  By  these  means  all  the 
uncertainty,  arising  from  an  erroneous  charge  in  the  indictment,  as  to 
the  species  of  contract,  and  it  is  no  small  item,  will  be  avoided.  It 
will  be,  hereafter,  only  necessary  to  describe  the  effect  of  the  instru- 
ment, not  to  declare  to  what  class  of  contracts  it  belongs  ;  and  every 
instrument,  which  the  convenience  of  commerce  or  the  extension  of 
obligations  may  introduce,  will,  at  once,  be  protected  by  the  law, 
without  a  new  statute  to  add  its  name  to  the  list.  The  next  change 
from  the  present  system,  which  is  proposed,  grew  naturally  out  of  the 
first  By  the  thirty-third  section  of  the  law  of  1805  it  is  enacted,  that 
"  all  the  crimes,  misdemeanors,  and  offences,  therein  enumerated,  shall 
j  taken,  intended,  and  construed  according  to,  and  in  conformity  with, 
the  common  law  of  England."  This  has  always  been  construed  into 
an  adoption  of  the  common  law  definition,  of  the  several  offences  which 
are  made  punishable  by  our  statute  law,  where  the  statute  itself  gave 

(«)  Acls  of  22d  Feb.  1817,  and  20th  March  1818. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  169 

no  other  definition.  But  by  the  common  law  some  acts  were  consider- 
ed as  forgery,  which  could  not  be  brought  within  any  reasonable  defini- 
tion of  the  offence  :  if  a  man,  who  had  made  a  conveyance,  should 
afterwards  execute  another  of  a  prior  date,  for  the  same  property,  with 
intent  to  defraud  ;  or  if  he  passed  a  note,  signed  by  himself,  pretend- 
ing that  he  was  another  person  who  bore  the  same  name,  but  had  better 
credit  ;  or  if  he  procured  the  execution  of  an  instrument  which  had 
been  secretly  altered,  or  substituted  one  for  another  before  agreed 
upon  ;  all  of  these  acts  were  classed  under  the  head  of  forgery.  They 
can  be  placed  there,  however,  only  by  an  arbitrary  arrangement,  which 
destroys  all  systems,  and  sets  definition  at  defiance.  They  have  this, 
in  common  with  forgery,  that  they  are  all  fraudulent  acts,  and  are  all 
committed  by  means  of  written  instruments;  but  forging  implies  falsi- 
fication of  an  instrument,  and  cannot  be  committed  by  the  fraudulent 
use  of  a  true  one,  or  by  the  alteration  of  a  writing  before  it  becomes 
the  act  of  any  one. 

I  have,  therefore,  characterized  them  as  offences  affecting  written 
contracts,  and  annexed  to  them  different  measures  of  punishment,  pro- 
portioned to  the  offence,  but  have  not  considered  them  as  forgeries. 
In  the  definition  I  have  offered  of  forgery,  the  intent  to  defraud  is 
equivalent  to  the  actual  completion  of  that  part  of  the  offence.  In  that 
the  new  plan  coincides  with  the  present  system  ;  but  it  differs  from  it 
in  this,  that  no  particular  person  need  to  be  assigned,  as  the  one  on 
whom  the  fraud  was  intended  to  be  practised.  The  necessity  for  this 
designation,  and  the  uncertainty  of  the  proof,  leads  now  to  the  escape 
of  the  guilty.  But  although  the  allegations  of  fraud  be  general,  it  can 
never  injure  the  innocent  ;  for  if  it  does  appear  from  the  instrument,  it 
must  always  be  strictly  proved.  An  inspection  of  the  different  articles 
of  this  chapter  will  render  any  further  exposition  of  them  here  unne- 
cessary. If  its  provisions  are  well  drawn,  it  provides  for  all  those 
offences  affecting  the  validity  of  written  contracts,  which  have  been 
deemed  worthy  of  punishment  by  the  English  law,  or  which  require 
it  under  our  state  of  society.  The  falsification  of  other  writings  not 
affecting  property,  such  as  public  records  and  other  official  acts,  is 
provided  for  in  other  parts  of  the  code. 

Although,  by  the  general  plan,  all  the  definitions  of  technical  words 
used  in  the  code  are  collected  in  the  book  designated  for  that  purpose, 
this  order  is  deviated  from,  in  cases  where  words  or  phrases  are  used 
exclusively  in  relation  to  any  particular  offence,  in  which  case  they  are 
sometimes  placed  as  articles  in  the  section  which  treats  of  the  offence. 
This  deviation  is  more  perceptible  in  this  chapter  than  perhaps  any 
other  in  the  code,  and  it  extends  in  this  instance  so  as  to  embrace  de- 
finitions of  some  words  that  are  not  used  exclusively  in  regard  to  the 
offences  contained  in  that  chapter.  It  was  resorted  to  in  order  to  bring 
into  one  view  every  thing  necessary  for  the  full  understanding  of  an 
important  class  of  crimes  ;  but,  in  all  such  cases,  the  same  definitions 
will  be  found  repeated  in  the  Book  of  Definitions. 

In  order  to  give  a  connected  view  of  all  the  changes  that  are  pro- 
posed, as  well  in  the  prosecution  as  of  the  definition  of  this  class  of 
offences,  I  must  anticipate  here  some  observations  which  regularly 
would  find  their  place  in  the  introductory  discourses  to  the  Code  of 
Procedure  and  the  Code  of  Evidence.  As  to  the  first  ;  that  part  of 
the  Code  of  Procedure  which  relates  particularly  to  prosecutions  for 
W 


170  INTRODUCTORY  REPORT  TO 

offences  under  this  chapter,  contains  some  provisions  which  require 
particular  notice.  One  great  inconvenience  in  the  present  system, 
has  already  been  hinted  at ;  the  necessity  of  giving  the  false  instru- 
ment a  name  in  the  indictment,  in  other  words,  of  charging  that  it 
purports  to  be  a  receipt,  a  note,  or  some  other  of  the  writings  which 
are  specifically  enumerated  in  the  various  acts.  By  substituting  a  defi- 
nition instead  of  such  a  catalogue,  this  difficulty  in  the  practice  is 
avoided.  Another  very  fruitful  source  of  captious  exceptions  arose 
from  the  necessity  of  setting  forth  exact  copies  of  the  instrument  in 
the  indictment,  a  mistake  in  which  led  always  to  delay,  and  some- 
times defeated  the  ends  of  justice.  It  is  thought  that  the  provisions 
on  this  subject  will  effectually  prevent  this  evil ;  while,  at  the  same 
time,  they  assure  to  the  accused  every  degree  of  certainty  in  the  accu- 
sation, necessary  to  a  full  understanding  of  the  charge,  and  every  fa- 
cility which  justice  and  humanity  require  for  making  his  defence. 
The  hope  of  escape,  by  some  technical  exception,  animates  every 
culprit ;  he  generally  overrates  his  chances  of  acquittal  from  this 
source  ;  and  it  is,  therefore,  a  point  of  the  greatest  importance  to  cut 
off  this  hope  of  impunity,  to  convince  the  accused  that  no  defect  of 
form  can,  under  any  circumstances,  procure  his  escape  ;  and  that  the 
only  chance  of  safety  lies  in  an  acquittal  on  the  merits.  This  convic- 
tion, once  deeply  impressed  on  the  minds  of  offenders,  and  counter- 
acted by  no  examples  of  impunity  from  defects  of  form,  will  have  the 
happiest  consequences,  particularly  in  this  description  of  crime,  in 
which  these  objects  are  at  present  most  common,  and  on  which,  well 
or  ill-founded,  the  guilty  place  the  greatest  reliance  for  escape.  To 
effect  these  important  ends,  provision  is  made  in  the  Code  of  Procedure, 
that  before  the  defendant  can  be  called  to  plead,  he  shall  be  furnished 
with  a  copy  of  the  instrument  said  to  be  forged,  have  an  opportunity 
of  comparing  it  with  the  original,  and  at  a  time  assigned  be  called  on 
to  produce  his  objections,  either  for  any  variance,  for  misnomer,  or 
any  other  defect  of  form  ;  these  are  to  be  disposed  of  in  a  manner 
directed  by  the  code,  before  the  plea  ;  and  then  the  trial  takes  place, 
divested  of  any  other  inquiry  but  that  on  the  merits. 

This  part  of  the  Code  of  Procedure  provides  also  simple  forms  of 
indictment  for  every  offence  contained  in  the  corresponding  division 
of  the  work,  and  for  every  modification  of  these  offences  ;  from  which 
it  has  been  endeavoured  to  discard  all  superfluous  allegations,  but  to 
give  to  the  accused  all  necessary  information  of  the  nature  of  the  charge 
against  him  ;  but  a  close  adherence,  even  to  these  forms,  is  not  ren- 
dered essential,  and  means  are  taken,  and  it  is  hoped  effectual  means,  to 
remedy  every  evil  arising  from  exceptions  to  defects  of  form.  I  now 
pass  to  the  consideration  of  a  few  rules  of  evidence,  contained  in  the 
Code  of  Evidence,  applicable  particularly  to  trial  for. offences  of  this 
class. 

By  the  English  law,  the  person  whose  name  is  forged,  was  not  ad- 
mitted as  a  witness  to  prove  the  forgery,  if  any  suit  could  have  been 
d  against  him  on  the  instrument,  if  it  were  true.  This  ex- 

sion  is,  by  the  English  jurists,  endeavoured  to  be  reconciled  to  the 
general  rule,  that  direct  interest  alone  shall  be  deemed  an  objection  to 
the  competency. 

1st.  From  the  consideration  that  the  forfeiture  consequent  on  con- 
viction, vested  all  the  property  of  the  offender,  and,  of  course,  the 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  171 

instrument  on  which  he  was  convicted,  in  the  crown,  who  neither 
could,  nor  would,  enforce  the  payment  of  it  after  conviction  ;  and  that, 
therefore,  there  is  an  evident  interest  in  the  witness  to  procure  such 
conviction. 

2d.  That  it  is  the  practice  of  the  courts  to  impound  the  instrument 
on  which  a  conviction  for  forgery  took  place;  that  is,  to  keep  it  in  the 
hands  of  their  officer  to  prevent  a  fraudulent  circulation,  and  therefore 
it  would  be  the  interest  of  the  witness  to  procure  a  conviction,  because, 
in  that  case,  the  difficulty  of  succeeding  in  a  private  suit  would  be  in- 
surmountable. 

The  first  of  these  reasons  cannot  apply  here,  where  forfeiture  is  un- 
known; and  the  practice  on  which  the  second  is  founded,  is  so  modified 
in  the  new  code,  as  to  give  facility  to  the  bringing  a  civil  suit,  even  on 
an  instrument  which,  in  the  criminal  court,  has  been  declared  a  forgery. 
There  can,  therefore,  be  no  foundation  for  alleging  an  interest,  that 
would  render  the  witness  incompetent  under  our  law  ;  and  to  exclude 
him  for  any  other  of  the  reasons  usually  alleged,  would  be  a  departure 
from  principle,  and  destroy  the  harmony  which  ought  to  prevail  be- 
tween the  rules  of  evidence  in  criminal  and  civil  cases.  It  is  true,  that 
a  bias  may  not  unreasonably  be  suspected  in  such  a  case  against  the 
prisoner.  But  it.  is  one  that  can  be  appreciated  by  the  jury,  and  there- 
fore ought  to  go  to  credit,  rather  than  competency. 

"  In  adopting  this  rule  you  will  only  sanction  what  has  heretofore 
been  practised  in  this  state,  and  in  several  others  governed  by  the  prin- 
ciples of  common  law  ;  but  as  there  has  been  a  diversity  of  decision  on 
this  point,  and  as  the  English  rule  is  at  present  observed  by  our  courts, 
it  was  thought  proper,  for  the  reasons  alleged,  to  abrogate  it  by  a  legis- 
lative provision." 

The  chapter  on  fraudulent  insolvencies  has  been  framed  with  a  view 
of  making  it  applicable  to  the  present  system  of  insolvent  laws,  or  to 
any  other  that  may  be  substituted  for  them.  The  great  evils  to  be  ap- 
prehended in  those  cases  being,  the  concealment  of  property,  the  fraudu- 
lent conveyance  of  it,  and  the  creation  of  fictitious  debts.  All  these 
have  been  provided  against,  by  penalties  applicable  as  well  to  the  dis- 
honest debtor  as  to  the  persons  who  may  colleague  with  him,  to  the 
injury  of  the  creditors.  These  penalties  extend  to  penitentiary  im- 
prisonment for  making  a  false  and  fraudulent  schedule  of  property  or 
debts,  or  for  wilfully  destroying  books  or  papers,  with  a  design  to  de- 
fraud. The  other  offences  being  such  measures  as  are,  for  the  most 
part,  resorted  to  in  moments  of  embarrassment  and  trouble,  not  show- 
ing such  depravity  as  calls  for  the  discipline  of  the  penitentiary,  it  was 
thought  would  be  sufficiently  corrected  by  suspension  of  certain  political 
and  civil  rights,  and  by  imprisonment.  The  circumstances  of  the  in- 
solvent forbade  the  addition  of  any  fine  to  his  offence;  but  it  forms  part 
of  the  punishment  of  those  who  collude  with  him.  and  who  may  be 
supposed  to  have  the  means  of  paying  one. 

By  the  single  article  of  the  thirteenth  title,  respecting  offences  af- 
fecting public  property,  it  is  declared,  that  all  the  provisions  for  the 
protection  of  private  property,  apply  also  to  that  of  the  public.  And 
in  the  fourteenth  title  is  also  comprised  one  general  provision  referring 
to  the  ordinances  of  the  juries  of  police,  and  the  public  corporations  of 
cities  and  towns,  for  the  laws  respecting  the  making  and  enlarging  the 
levees,  roads,  bridges,  streets  and  public  squares,  and  for  the  penalties 


172  INTRODUCTORY  KEPOKT  TO 

they  impose  for  a  disregard  of  them  ;  it  having  been  found  impossible, 
in  a  permanent  system,  to  provide  for  the  varying  legislation  that  the 
changing  nature  of  the  subject  would  require;  or,  in  a  general  system,  to 
embrace  all  the  circumstances  which  the  local  police  might  require. 
But  two  chapters,  under  this  title,  contain  the  only  enactments  on  this 
subject,  which,  from  their  nature,  could  be  justly  made  permanent  and 
co  extensive  with  the  state  in  their  local  operation.  These  two  chap- 
ters are  based  upon  the  present  law,  and,  therefore,  need  no  further 
elucidation. 

The  fifteenth  title  relates  to  offences  injurious  to  public  health  or 
safety.  At  the  time  it  was  written  the  Code  of  Public  Health  was  in 
force.  As  it  has  since  been  repealed,  it  is  presumed  that  the  legislature 
do  not  consider  any  provision,  against  the  introduction  of  infectious  and 
contagious  disorders,  to  be  necessary,  and  the  chapter  on  that  subject  is 
suppressed.  The  first  chapter  of  this  title,  as  it  now  stands,  imposes  a 
penalty  on  all  those  who  store  gunpowder  in  greater  quantity  than  ten 
pounds,  within  one  hundred  yards  of  a  dwelling-house,  or  public  road, 
or  the  land  of  any  person  who  does  not  give  his  consent ;  who  carry  on 
trades  injurious  to  the  health  of  those  who  live  in  the  vicinity  ;  and 
against  those  who  adulterate  provisions,  liquor,  or  drugs,  so  as  to  make 
them  injurious  to  health. 

Offences  against  morals  are  the  subject  of  a  title  containing  four 
chapters. 

The  first  relates  to  disorderly  houses,  and  its  provisions  coincide 
substantially  with  those  of  our  statute,  but  *the  offences  are  more  pre- 
cisely defined. 

The  second  chapter  contains  prohibitions  entirely  new  in  our  law, 
although  they  form  a  very  comprehensive  part  of  the  English  common 
law,  under  the  title  of  Offences  against  Decency.  This  is  quite  un- 
defined in  that  law.  In  the  chapter  which  I  present,  it  is  restricted  to 
four  cases  :  indecent  exposure  of  person  ;  insulting  and  indecent  lan- 
guage to  a  woman  ;  deliberate  seduction,  under  promise  of  marriage  ; 
and  the  infamous  agency  of  ministering  to  the  vices  of  others.  Seduc- 
tion is  not,  I  believe,  punishable  in  England,  unless  preceded  by  a 
conspiracy  ;  nor  in  any  manner  whatever  by  our  statutes.  Yet,  if  we 
consider  the  base  profligacy  of  the  act,  by  which  the  most  implicit 
confidence  is  betrayed,  and  the  most  solemn  promises  are  deliberately 
broken,  not  only  to  the  utter  ruin  of  the  unsuspecting  victim,  but  to 
the  disgrace  and  misery  of  her  connexions,  it  is  one  in  which  the  im- 
morality of  the  act,  and  the  misery  it  inflicts,  both  require  exemplary 
punishment. 

Although  the  private  excesses  of  the  passion  between  the  sexes  can- 
not, with  propriety,  be  made  the  subject  of  penal  law,  yet  public  opinion, 
in  all  nations,  has  marked,  by  its  decided  reprobation,  him  who,  without 
being  excited  by  his  own  passions,  ministers  to  those  of  others  for  gain, 
and  in  that  vile  office  frequently  seduces  innocence,  or  purchases  the 
influence  of  infamous  or  necessitous  parents  to  the  dishonour  of  their 
child.  The  indication  of  public  sentiment  has,  on  this  occasion,  been 
pursued,  and  the  act  has  been  made  penal  by  the  code. 

It  seems  right  and  proper  that  the  law  should  lend  its  aid  to  punish 
all  acts  against  individuals  that  provoke  a  just  resentment,  which  will 
naturally  vindicate  itself,  if  the  law  refuses  its  aid.  It  is  for  this  reason 
that  the  article,  imposing  a  penalty  on  indecent  and  insulting  expressions 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  173 

to  a  woman,  has  been  added.  It  has  been  considered,  by  one  whose 
authority  and  opinions  1  highly  respect,  as  descending  into  minutiae 
unbefitting  a  penal  code,  and  as  one  of  those  offences  to  be  repressed 
by  public  opinion  or  the  fear  of  private  chastisement,  rather  than  by- 
law. If  the  force  of  public  opinion  were  a  sufficient  sanction,  I  should 
have  proposed  no  other  ;  but  it  is  because  its  insufficiency  is  acknow- 
ledged, and  private  resentment  is  proposed  to  aid  its  operation,  that  I 
propose  to  substitute  the  regular  action  of  the  law  to  the  uncertain 
penalty  of  individual  passion. 

Whether  adultery  should  be  considered  as  an  offence  against  public 
morality,  or  left  to  the  operation  of  the  civil  laws,  has  been  the  subject 
of  much  discussion.  As  far  as  I  am  informed,  it  figures  in  the  penal 
law  of  all  nations,  except  the  English;  and  some  of  their  most  celebrated 
lawyers  have  considered  the  omission  as  a  defect. 

Neither  the  immorality  of  the  act,  nor  its  injurious  consequences  on 
the  happiness  of  females,  and  very  frequently  on  the  peace  of  society 
and  the  lives  of  its  members,  can  be  denied.  The  reason,  then,  why  it 
should  go  unpunished,  does  not  seem  very  clear.  It  is  emphatically 
one  of  that  nature  to  which  I  have  just  referred,  in  which  the  resent- 
ment of  the  injured  party  will  prompt  him  to  take  vengeance  into  his 
own  hands,  and  commit  a  greater  offence,  if  the  laws  of  his  country 
refuse  to  punish  the  lesser.  It  is  the  nature  of  man,  and  no  legislation 
can  alter  it,  to  protect  himself  where  the  laws  refuse  their  aid;  very 
frequently  where  they  do  not,  but  where  they  will  not  give  protection 
against  injury,  it  is  in  vain  that  they  attempt  to  punish  him  who  sup- 
plies, by  his  own  energy,  their  remissness.  Where  the  law  refuses  to 
punish  this  offence,  the  injured  party  will  do  it  for  himself;  he  will 
break  the  public  peace,  and  commit  the  greatest  of  all  crimes,  and  he 
is  rarely  or  never  punished.  Assaults,  duels,  assassinations,  poison- 
ings, will  be  the  consequence.  They  cannot  be  prevented  ;  but,  per- 
haps, by  giving  the  aid  of  the  law  to  punish  the  offence,  which  they  are 
intended  to  avenge,  they  will  be  less  frequent ;  and  it  will,  by  taking 
away  the  pretext  for  the  atrocious  acts,  in  a  great  measure  insure  the 
infliction  of  the  punishment  they  deserve.  It  is  for  these  reasons  that 
the  offence  of  adultery  forms  a  chapter  of  this  title. 

Different  punishments  are  awarded,  to  the  unfaithful  wife — to  the 
inconstant  husband,  who  is  so  regardless  of  honour  and  decency,  and 
public  opinion,  as  to  keep  a  concubine  in  the  house  with  his  wife,  or  to 
force  her,  by  ill  treatment,  to  leave  it  and  give  place  to  the  usurper  of 
her  rights.  The  reasons  for  this  distinction,  between  the  offence  of  the 
husband  and  the  wife,  are  obvious,  and  founded  in  nature.  The  para- 
mour of  the  wife  is  also  punished  by  fine  and  imprisonment ;  and  to 
avoid  collusions,  no  prosecutions  against  the  wife  can  be  carried  on  un- 
less the  partner  of  her  crime  is  joined  in  it.  This  regulation,  too,  will 
be  some  check  to  the  heartless  seducer,  who  might  otherwise  look  with 
indifference  on  the  penalty  suffered  by  another  for  the  crime  of  which 
he  was  the  principal  cause. 

It  is  provided,  under  this  head,  that  no  prosecution  for  this  offence 
shall  be  commenced  but  on  the  complaint  of  the  injured  party,  and  that 
it  shall  cease  if  they  become  reconciled  before  sentence. 

The  respect  paid  to  the  bodies  of  the  dead,  which  from  its  universality 
would  seem  to  be  a  natural  sentiment,  has  suggested,  in  all  countries, 
laws,  or  customs  having  the  force  of  laws,  forbidding  as  a  kind  of  sacri- 


174  INTRODUCTORY  REPORT  TO 

lego  the  violation  of  the  receptacles  for  human  remains,  whether  they 
be  embalmed,  interred  or  consumed.  The  catacomb,  the  grave,  and  the 
urn,  were  held  equally  sacred;  and  any  intrusion  upon  them  has  always 
not'only  been  considered  as  immoral,  but  punished  as  a  crime.  It  is 
in  vain  that  pretended  philosophy  affects  to  consider  it  as  prejudice. 
The  feelings  of  the  philosopher  belie  the  language  of  his  wisdom  ;  and 
however  indifferent  he  might  feel  as  to  his  own  remains,  he  would  not 
see,  without  affliction,  the  body  of  a  friend  or  relation  torn  from  the 
crave,  even  to  promote  the  progress  of  science.  It  is  in  vain  that  we 
are  told,  and  are  truly  told,  that  the  health  and  life  of  the  living  ought 
not  to  be  sacrified  to  a  vain  respect  for  the  body  of  the  dead,  incapable 
of  suffering  here,  or  feeling  the  ignominy  of  exposure;  the  reason  may 
be  convinced,  but  the  feeling  remains.  Science  must  be  content  with 
subjects  whose  dissection  will  interest  the  feelings  of  none  who  are 
alive.  The  bodies  of  those  few,  who,  themselves  above  this  prejudice, 
devote  their  remains  to  the  cause  of  science ;  those  of  malefactors  who 
die  in  the  imprisonment  inflicted  by  the  law,  must  suffice  for  the  im- 
provement of  surgical  knowledge.  But  the  laws  must  protect,  in  the 
place  of  their  lasting  rest,  the  remains  that  are  sacred  to  the  memory  of 
surviving  relations  or  friends.  This  natural  feeling  has  not  been  ne- 
glected in  the  code  which  is  presented,  and  a  proper  punishment  is 
denounced  against  every  violation  of  the  sanctuary  of  the  tomb. 

We  have  now  closed  the  review  of  those  offences  which,  powerfully 
affecting  the  community  in  general,  have  been  classed  as  public  offences. 
The  seventeenth  title  commences  the  other  division,  distinguished  as 
Private  Offences  ;  and  first  of  these  stand  such  as  affect  individuals 
in  the  exercise  of  their  religion.  In  most  other  systems  of  penal  law 
this  title  is  much  more  extensive.  It  there  embraces  a  species  of  of- 
fences carefully  excluded  from  this.  In  those  systems  the  dominant 
religion  is  personified,  and  rendered  by  this  fiction  subject  to'be  injured 
by  investigating  its  truth,  or  doubting  its  divine  origin.  Nay,  the  Su- 
preme Being  himself  is  sometimes  impiously  substituted  for  the  mode 
of  worship  or  tenets  of  faith  which  prevail  in  the  state,  and  his  almighty 
power  is  protected  by  vain  laws  to  punish  "  offences  against  God  and 
religion"(a).  The  code  offered  to  you  does  not  contain  this  absurdity. 
The  exercise  of  religion  is  considered  as  a  right ;  an  inestimable  one. 
It  is  restrained  only  by  those  limits  which  must  restrict  all  rights,  that 
they  do  not  encroach  on  those  of  another ;  or,  in  other  words,  do  not 
change  into  wrongs.  All  articles  of  faith,  all  modes  of  worship  are 
equal  in  the  eye  of  the  law  :  all  are  entitled  to  equal  protection.  The 
fallibility  of  human  laws  does  not  undertake  a  task  to  which  unerring 
wisdom  alone  is  competent.  The  weakness  of  human  laws  does  not  at- 
tempt to  avenge  the  cause  of  infinite  power;  and  injuries  and  insults  to 
the  Deity,  are  left  to  the  Being  who  asserts  his  rights  to  the  exclusive 
cognizance  of  such  offences  :  "  Vengeance  is  mine;  I  will  repay,  saith 
the  Lord."  The  code  has  not  ventured  to  trench  on  this  divine  pre- 
rogative ;  but  the  provisions  of  this  title  will  be  found  to  repress  or 
punish  any  wanton,  or  intolerant  attempt  to  disturb  or  persecute;  while 
every  necessary  authority  is  secured  to  religious  societies,  for  the  pre- 
servation of  order  among  their  members.  So  that  the  general  principles 

(a.)  4  Bl.  43. 


THE  CODE  OF.  CRIMES  AND  PUNISHMENTS.  175 

announced  in  the  preliminary  chapter  to  the  code,  taken  in  connexion 
with  the  provisions  of  this  title,  evince  that  this  state  will  give  effect  to 
the  noble  experiment  that  has  so  successfully  been  tried  in  these  re- 
publics— of  giving  perfect  liberty  to  conscience — perfect  protection  to 
all  religions,  and  substituting  perfect  equality  for  insulting  toleration;  an 
experiment  which  demonstrates  how  fallacious  is  the  argument  of  a 
necessary  connexion  between  church  and  state;  which  shows  that  true 
piety  may  be  preserved  amid  a  variety  of  religious  tenets;  and  proves, 
that  liberty  in  religion  has  the  same  influence  on  the  great  virtues, 
which  all  sects  consider  as  essential  to  produce  eternal  happiness,  as 
liberty,  in  government,  has  on  those  which  are  the  basis  of  political 
prosperity. 

To  repress  injuries  to  reputation,  is  a  duty  more  incumbent  on  legis- 
lation since  the  introduction  of  printing  has  given  so  many  facilities  to 
assail  it;  but  the  task  is  rendered  more  difficult,  because  the  same  in- 
strument, usually  employed  in  the  work  of  detraction,  is  one  that  is 
necessary  to  spread  information,  promote  science,  support  political  and 
civil  liberty,  and  propagate  the  truths  of  religion.  To  permit  its  un- 
restrained employment  for  these  noble  ends,  and  at  the  same  time  pre- 
vent its  being  used  as  a  means  of  destroying  reputation,  is  the  task  that 
must  be  performed,  if  we  wish  to  preserve  consistency  in  this  important 
division  of  our  Penal  Code.  This,  it  was  believed,  could  be  done  only 
by  denning  the  offence,  and  then  laying  down  as  deductions  from  such 
definition,  a  set  of  negative  as  well  as  affirmative  rules,  declaring  what 
species  of  assertion  shall  be  punishable  as  illegal  attacks  upon  reputa- 
tion, and  what  shall  be  permitted  in  order  to  avoid  the  greater  evil  of 
restraining  the  proper  liberty  of  speech  and  of  the  press.  In  perform- 
ing this  task,  alterations  have  been  made  in  the  present  law,  which 
were  necessary  to  adapt  it  to  the  letter  and  spirit  of  our  constitution  ; 
the  provisions  of  which  have  been  adverted  to  in  that  part  of  the  report 
which  treats  of  offences  against  the  liberty  of  the  press.  These  provi- 
sions will  be  pointed  out,  although  not  in  the  order  in  which  they  stand 
in  the  chapter. 

1.  The  undefined,  and  perhaps  undefinable,  offence  of  libelling  the 
government,  a  court,  or  any  other  aggregate  body,  is  abolished,  as  in- 
consistent with  the  spirit  of  the  constitution.  It  gives  unqualifiedly 
the  right  of  using  the  press  for  the  purpose  of  "examining  the  proceed- 
ings of  the  legislature,  or  any  branch  of  the  government,"  and  declares, 
that  no  law  shall  ever  be  made  to  restrain  this  right.  But  of  what  avail 
would  this  privilege  be,  if  public  bodies  were  guarded  by  the  rules  that 
apply  to  libels  against  individuals  by  the  English  law?  Every  thing, 
according  to  that  law,  that  tends  to  bring  a  person  into  contempt  or 
disgrace,  is  a  libel ;  and  although  the  strictures  are  true,  the  guilt  is  not 
lessened,  but,  according  to  some  authorities,  enhanced.  Therefore, 
every  discussion  of  a  legislative  measure,  or  a  judicial  decision,  which 
tends  to  show  folly  in  the  one,  or  injustice  in  the  other,  would  be 
punishable  as  a  libel ;  and  the  very  end  which  the  constitution  had  in 
view  would  be  defeated.  The  restriction  that  every  one  is  liable  for 
the  abuse  of  the  liberty,  clearly  does  not  apply  to  any  latitude  of-  ani- 
madversion whatever  upon  public  measures;  but  to  the  injury  that  may 
be  done  to  private  character.  As  to  public  measures,  there  can  be  no 
abuse  of  the  right.  It  must  be  unrestrained,  or  it  is  no  right ;  for  you 
can  rest  the  right  of  repression  nowhere  but  in  the  hands  of  some  pub- 


176  INTRODUCTORY  REPORT  TO 

lie  functionary  ;  he  must  be  guided  by  laws  made  by  the  legislative 
power:  and  with  this  power  of  making  the  rule  and  of  interpreting  the 
publication  that  is  supposed  to  be  obnoxious  to  it,  the  privilege  of  pub- 
lishing and  discussing  would  soon  be  brought  within  limits  too  narrow 
to  be  of  any  value,  unless  it  was  guarded  by  the  constitutional  declara- 
tion, and  by  laws  made  to  give  to  it  its  full  effect.  Nor  can  the  abuse 
of  this  liberty  be  attended  with  any  great  or  permanent  inconvenience; 
certainly  with  none  that  can  be  compared  with  that  of  the  restraint.  A 
false  representation  of  legislative  proceedings  can  have  little  or  no  effect 
in  a  country  where  the  press  is  as  free  to  correct  as  it  is  to  spread  it. 
In  a  country  where  laws  are  made  by  a  numerous  body,  whose  pro- 
ceedings are  in  public,  misrepresentation  is  destroyed  the  moment  it 
appears,  and  injures  no  one  but  its  weak  or  wicked  author.  The  terms 
of  a  law  may  be  grossly  misrepresented.  The  next  day  it  is  published, 
and  the  falsehood  is  detected.  No  injury  is  suffered  by  the  public;  but 
the  penalty  falls  on  the  author,  who  loses  his  credit  for  veracity  or  dis- 
cernment. The  reasons  which  led  to  the  passage  of  the  law,  are  erro- 
neously and  falsely  slated  ;  they  are  ascribed  to  ignorance  of  the  true 
interests  of  the  country — hard  at  the  heels  of  the  calumny  comes  its 
refutation  in  the  publication  of  the  debates,  and  the  public  sustains  no 
injury  from  the  calumny  offered  to  a  public  body  in  its  aggregate  ca- 
pacity. The  same  reasoning  applies  to  the  judiciary,  considering  courts 
in  their  incorporeal  capacity.  The  publication  and  the  publicity  of 
their  proceedings  will  always  correct  any  false  representations  that  may 
be  made;  and  the  ideal  beings  which  we  personify  for  certain  purposes, 
under  the  names  of  legislative  and  judiciary  power,  will  suffer  no  more 
injury,  will  no  more  be  brought  into  contempt  by  false  and  malicious 
accounts  of  their  proceedings,  than  the  other  power,  which  we  call  the 
executive,  and  which  it  has  never  been  thought  proper  to  protect,  in- 
dependent of  the  persons  who  exercise  it,  by  any  law  of  libel.  If, 
then, there  be  any  inconvenience  in  permitting  the  widest  possible  range 
to  the  right  of  verbal  or  written  discussion  of  public  measures,  it  is  one 
of  inconsiderable  amount;  but  the  evil  of  imposing  the  least  restraint  is 
incalculable.  Say  that  true  representations  shall  be  allowed — who  will, 
in  order  to  inform  the  people,  risk  any  publication  of  the  measures  of 
their  rulers?  If  incorrect  accounts  of  judicial  proceedings  are  punish- 
able, who  will  venture  on  the  task  of  a  reporter  ?  Publicity,  that  great 
safeguard  against  corruption,  will  be  destroyed:  public  opinion,  which, 
even  in  despotic  governments,  corrects  abuses,  will  lose  its  force  ;  and 
the  law  of  libel,  with  this  extent,  becomes  one  of  the  most  powerful 
engines  for  the  overthrow  of  all  free  institutions. 

But  when  any  of  the  public  functionaries,  in  either  of  the  great 
branches  of  government,  are  personally  attacked— when  animadver- 
sions on  public  proceedings  are  made  the  vehicle  for  injury  to  private 
character— then  the  law  protects  them  as  it  does  any  other  individual  ; 
and,  although  there  can  be  no  libel  against  the  government,  or  the  court, 
yet  the  legislator  and  the  judges  are  not  left  without  the  same  redress 
that  is  given  to  their  fellow-citizens.  The  limits  of  this  report  will  not 
permit  me  to  offer  one-half  of  the  reasons  that  present  themselves  to 
justify  the  suppression  of  this  species  of  libel  from  our  codes.  The 
practical  result  however  from  them,  observed  in  the  general  and  state 
governments,  is  instructive.  In  most,  if  not  in  all  of  the  states,  libels 
against  the  government,  and  particularly  against  the  judiciary  branch 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  177 

of  it,  are  liable  to  prosecution.  Under  the  general  government,  since 
the  repeal  of  the  unconstitutional  sedition  law,  they  are  not.  Yet  the 
tribunals  of  the  United  States,  unprotected  by  any  penalty,  are  certainly 
not  less  respected,  and  perform  their  functions  with  as  little  interrup- 
tion, from  the  licentiousness  of  the  press,  as  those  of  the  state  govern- 
ments. 

In  most  cases,  the  connexion  between  cause  and  effect  exists  between 
the  subject  of  this  chapter  and  that  of  a  subsequent  one — Of  Duels.  De- 
famation, either  real  or  supposed,  is  the  cause  of  most  of  those  combats 
which  no  laws  have  yet  been  able  to  suppress.  If  lawgivers  had  origi- 
nally condescended  to  pay  some  attention  to  the  passions  and  feelings 
of  those  for  whom  they  were  to  legislate,  these  appeals  to  arms  would 
never  have  usurped  a  power  superior  to  the  laws  ;  but  by  affording  no 
satisfaction  for  the  wounded  feelings  of  honour,  they  drove  individuals 
to  avenge  all  wrongs  of  that  description,  denied  a  place  in  the  code  of 
criminal  law.  Insults  formed  a  title  in  that  of  honour,  which  claimed 
exclusive  jurisdiction  of  this  offence.  It  is  too  late,  perhaps,  to  eradi- 
cate; but  we  may  probably,  by  prudent  provisions,  lessen  the  evil. 
With  this  view,  some  have  been  introduced  into  this  chapter ;  all 
of  which  are  new  in  our  criminal  jurisprudence.  By  one,  the  court 
may,  if  the  circumstances  of  the  case  render  it  proper,  direct  that  the 
whole  or  any  part  of  the  punishment  may  be  remitted,  on  the  defendant's 
making  such  apology,  or  after-amends,  as  the  court  shall  deem  sufficient 
to  the  injured  party.  By  another,  where  the  jury  find  that  the  accused 
spoke  the  words,  or  made  or  published  the  libel,  and  that  the  charge 
is  false,  they  are  required  specially  to  state  that  the  charge  is  false 
and  unfounded,  and  the  court  may,  on  the  demand  of  the  prosecutor, 
cause  such  declaration  to  be  published  at  the  expense  of  the  defendant. 
Lastly,  if  the  defendant  shall  avow  himself  to  have  been  the  speaker  of 
the  words,  or  the  author  of  the  libel,  and  acknowledge  that  the  charge 
they  import  is  unfounded,  or  in  cases  where  there  is  any  ambiguity 
that  the  charge  was  not  intended  to  apply  to  the  prosecutor,  the  punish- 
ment shall  be  confined  to  the  payment  of  costs  and  the  publication  of 
proceedings.  These  several  provisions,  by  extending  the  legal  remedy 
over  part  of  the  ground,  now  exclusively  occupied  by  the  principle  of 
honour,  it  is  thought,  may,  in  conjunction  with  the  special  enactments 
in  the  chapter  of  duels,  have  a  tendency  to  check  that  absurd  and  fatal 
practice. 

No  words  should  be  punishable,  unless  they  are  used  with  intent  to 
injure,  or  are  such  as,  whatever  may  be  the  real  intent  of  the  party, 
naturally  have  that  tendency.  But  even  to  this  there  must  be  further 
restrictions,  such  as  charges  necessarily  made  in  the  prosecution  of  a 
public  duty,  either  as  a  legislator,  judge,  advocate  or  witness,  and  confi- 
dentially by  way  of  advice,  or  called  for  in  self-defence.  These  and  other 
exceptions  are  specially  declared  in  the  code,  and  they  are  generally 
taken  from  those  English  decisions  which  have  been  considered  as  the 
most  consonant  to  the  dictates  of  reason.  A  variance,  however,  from 
that  law  will  be  found  in  making  defamation,  by  words  spoken,  as  much 
an  offence  as  if  they  were  written.  By  the  English  law,  although 
these  give  a  right  of  private  action,  yet  be  they  ever  so  malicious  and 
injurious,  be  the  charge  which  they  employ  ever  so  atrocious,  they 
cannot  be  punished  as  an  offence.  For  this  difference  it  was  supposed 
no  substantial  reason  could  be  given,  and  it  was  believed  also  that  it 
X 


178  INTRODUCTORY  REPORT  TO 

would  lead  10  other  serious  inconveniences.  The  satisfaction  by  private 
suit  must  necessarily  be  of  a  pecuniary  nature.  Men,  therefore,  who 
think  highly  of  reputation,  are  unwilling  to  have  theirs  appreciated  by 
that  standard.  They  will,  then,  either  suffer  the  injury  to  go  unpun- 
ished, or  they  will  in  this,  as  in  most  other  cases  where  no  remedy,  or 
an  inadequate  one  is  provided,  take  the  law  into  their  own  hands  ; 
and  it  is  no  improbable  conjecture,  that  a  very  great  proportion  of  the 
many  breaches  of  the  peace,  and  deaths  by  duels,  which  originate  in 
verbal  provocation,  might  have  been  avoided,  had  an  adequate  satisfac- 
tion been  provided  by  law.  This  distinction,  however,  is  established, 
that  while  no  action  can  be  sustained  for  words  spoken,  unless  they 
are  false;  yet,  when  they  are  deliberately  written  and  published,  with 
a  view  to  injure  the  character,  they  are  punishable,  although  they 
are  true,  unless  they  were  used  from  some  motive  of  public  good  or 
private  duty.  This  distinction  has  received  the  sanction  of  the  highest 
legal  authority,  and  has  been  practised  under  in  one  or  more  of  the 
states  without  any  inconvenience.  It  is  a  correction  of  our  present 
law,  which  forbids  the  truth  to  be  given  in  evidence  in  any  case  of 
libel.  If  the  truth  were  a  justification  in  no  case,  one  half  of  the  utility 
of  the  press  would  be  destroyed.  The  misconduct  and  incapacity  of 
those  already  in  office,  and  the  want  of  talent  or  character  of  the  candi- 
date, would  be  protected  from  exposure.  If  it  were  a  justification  in 
every  case,  the  wanton  and  malicious  exposure  of  foibles,  misfortunes 
or  defects,  might,  with  impunity,  make  the  life  of  an  individual  miser- 
able, while  the  anonymous  author  remained  unknown;  and  would  not, 
as  in  the  case  of  the  same  words  spoken,  be  restrained  by  the  fear  of 
personal  vengeance. 

The  second  chapter  of  this  title  provides  a  punishment  for  an  offence, 
frequent  in  times  of  political  excitement,  the  hanging  or  burning  an 
obnoxious  person  in  effigy,  the  relique  of  a  barbarous  state  of  socie- 
ty, and  the  proof  of  a  ferocious  disposition,  fostered  by  these  riotous 
proceedings,  and  which,  unless  restrained  by  the  laws,  would  realize 
the  cruel  indignities  of  which  they  are  the  symbol.  Combinations  to 
destroy  reputation  by  false  accusations ;  and  threats  of  making  them 
for  the  purpose  of  extorting  money,  are  the  subject  of  the  third  chapter 
of  this  title.  The  fourth,  which  concludes  it,  relates  to  a  mode  of  injur- 
ing reputation,  not  unfrequently  resorted  to  by  the  ingenuity  of  malice, 
by  publishing  false  writings  in  the  name  of  another,  tending  to  bring 
him  into  ridicule  or  contempt.  The  happiness  of  individuals,  the  quiet 
of  families,  and  the  peace  of  society,  depend  so  much  on  the  protection 
given  by  the  laws  to  reputation,  that  this  title  is  more  minute  in  its 
provisions  than  many  of  the  others.  The  innovations  that  have  been 
introduced,  it  is  believed,  will  be  justified  by  a  close  examination  of  their 
tendency,  and  that  no  parts  of  the  present  law  on  the  subject  have  been 
omitted  or  changed,  but  such  as  can  be  justified  by  the  most  cogent 


reasons. 


"™  ^ome  to  the  important  title  of  Offences  affecting  the  Per- 
Dn.     And,  before  we  examine  the  several  acts  which  are  made  punish- 
under  this  head,  it  may  be  necessary  to  remark,  that,  instead  of 
beginning,  as  is  usually  done,  with  offences  of  the  highest  degree  in 
class  and  then  descending  to  the  lowest,  the  order  in  this  code  is 
sed,  and  the  ascending  scale  has  been  adopted  for  reasons  which 
are  not  those  of  mere  arbitrary  arrangement.     By  beginning  with  the 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  179 

lowest  injury  that  can  be  offered  to  the  person,  an  assault,  you  lay  the 
foundation  for  comprehending  the  definitions  and  descriptions  of  all 
the  others  which  are  only  aggravations,  either  in  degree  or  by  intent;  and 
having  defined  all  the  intermediate  degrees  between  it  and  murder,  you 
arrive  at  the  simple  conclusion  that  every  homicide,  which  is  not  in- 
cluded in  any  of  the  preceding  classes  of  crimes,  is  murder.  Whereas, 
by  beginning  as  is  usually  done  at  the  other  end  of  the  scale,  you  must 
explain  all  the  lower  degrees  which  are  included  in  that  with  which 
you  begin,  or  your  definition  will  not  be  understood.  For  example  : 
if  we  begin  with  murder,  we  can  only  cause  it  to  be  comprehended 
by  saying  that  it  is  homicide.  We  must  then  anticipate,  by  defining 
homicide  ;  and  when  we  come  to  the  circumstances  and  intent  which 
distinguish  murder  from  other  homicides  that  are  justifiable  or  excus- 
able or  criminal  in  a  less  degree,  we  must  travel  on  untrodden  ground, 
which  we  must  pass  over  again  when  we  come  to  speak  of  these  other 
kinds  of  homicide.  But  by  advancing  regularly,  we  clear  the  way  as 
we  go  ;  and  by  getting  a  definite  idea  of  the  several  kinds  of  homi- 
cide, ascending  through  the  different  degrees,  from  the  slightest  to  the 
highest  guilt,  our  march  is  uniform  ;  each  definition  is  the  foundation 
for  that  which  succeeds,  until  we  come  to  the  last ;  and  we  may  form 
a  clear  conception  of  the  crime  of  murder,  by  calling  it  such  homicide 
as  does  not  fall  within  any  of  the  preceding  classes. 

With  this  notice  of  the  mode  of  classing  the  offences  against  the 
person,  the  very  few  observations  that  will  be  made  on  the  details  of 
this  title,  will  be  readily  understood. 

Assault,  the  lowest  injury  of  this  kind,  and  battery,  which  usually 
accompanies  it,  do  not  materially  vary  in  their  definitions  from  those 
contained  in  the  English  law  ;  but  the  chapter,  among  other  details, 
contains  a  minute  enumeration  of  all  the  circumstances  which  will 
justify  or  excuse  violence  offered  to  the  person,  a  matter  on  which  it  is 
of  the  highest  importance  that  the  law  should  be  not  only  explicit,  but 
well  understood  by  every  individual  in  society.  Where  the  same  act 
may  be  indifferent,  or  a  duty,  or  a  crime,  that  legislation  is  surely  im- 
perfect which  leaves  any  thing  to  conjecture  on  such  important  points. 
Yet  however  rich  our  present  law  may  be,  in  the  number  of  decisions 
to  elucidate  this  branch  of  personal  duty,  it  is  most  wofully  deficient 
in  that  order,  selection  and  publicity,  from  which  the  people  can  learn 
its  will.  The  code  purports  to  remedy  this  evil  ;  to  give  to  the  most 
prominent  and  best  founded  of  these  decisions  the  force  of  positive  law  ; 
to  give  arrangement  and  order  to  the  principles  on  which  they  are 
founded,  and  enable  the  citizen  to  know  what  species  of  violence  he 
may  resist,  and  in  what  degree  ;  to  what  he  is  bound  to  submit ;  in 
what  cases  and  in  what  degree  he  is,  in  his  turn,  justified  in  exercising 
it ;  and  to  trace  precisely  the  line  which  he  cannot  pass  without  in- 
curring the  penalties  of  the  law.  The  different  sections  of  this  chap- 
ter mark,  with  a  precision  which  it  is  hoped  will  prove  sufficient,  the 
aggravations  of  this  offence,  arising  from  person,  place,  intent  and 
degree. 

Illegal  imprisonment  forms  the  subject  of  the  second  chapter.  The 
first  section  contains  the  detail  of  the  different  modes  by  which  the 
detention,  constituting  this  offence,  may  be  effected,  whether  by  assault, 
by  actual  violence,  by  threats,  or  by  some  natural  obstacle  opposed  to 
the  power  of  locomotion.  Each  of  these  are  developed  and  illustrated; 


180  INTRODUCTORY  REPORT  TO 

and  the  cases  in  which  detention  of  the  person  of  another  may  be 
justified,  are  set  forth  in  the  text.  A  subsequent  section,  as  in  the  cases 
of  assault  and  battery,  specifies  the  aggravation  to  the  offence,  caused 
by  the  purpose  or  degree  ;  and  that  species  of  illegal  restraint  of  liber- 
ty* applicable  only  to  the  female  sex,  known  by  the  name  of  abduction, 
is  provided  for  and  defined  in  the  concluding  section  of  this  chapter. 

The  next  chapter  relates  to  an  offence  of  the  most  heinous  nature, 
whether  we  consider  its  effects  on  the  sufferer  or  those  with  whom 
she  may  be  connected.  Whenever  it  occurs,  the  best  feelings  of  our 
nature  are  roused  against  the  brutal  and  ferocious  perpetrator,  and  the 
detestation  in  which  the  ravisher  is  held,  has  almost  universally  in- 
duced legislators  to  increase  the  severity  of  the  punishment,  without 
considering  that  his  chance  of  impunity  increases  in  the  same  ratio. 
By  our  present  law  it  is  one  of  the  few  crimes  punished  with  death. 
In  addition  to  the  general  reasons  for  substituting  a  milder  penalty, 
which  apply  to  other  cases,  there  is  one  which  makes  it  peculiarly 
necessary  in  this.  It  is  a  crime  in  which  conviction,  from  its  nature,  must 
for  the  most  part  depend  on  the  testimony  of  a  single  witness  ;  the 
odium  attached  to  its  perpetrator  generally  supplying  the  deficiency  of 
other  proof.  It  is  of  all  accusations,  therefore,  that  one  in  which  the 
innocent  have  most  to  fear,  and  in  which  an  irremediable  punishment 
ought  most  to  be  avoided.  But  though  the  delinquent  ought  always  to 
be  kept  within  the  reach  of  the  pardoning  power,  his  punishment 
should  not  be  light :  it  is  imprisonment  for  life.  Some  innovation  is 
introduced  in  the  definition  of  this  crime.  When  the  object  is  attain- 
ed by  fraud,  the  consent,  though  apparently  given,  is  as  much  wanting 
in  reality,  as  when  violence  is  applied.  Two  cases,  in  which  such 
fraud  shall  be  equivalent  in  guilt  to  force,  are  specified  :  where  it  is 
obtained  by  the  administration  of  soporific  or  other  drugs,  and  where 
the  perpetrator  personates  the  husband  of  the  sufferer.  The  other 
provisions  of  this  chapter  are  generally  accordant  with  the  present  law. 

The  destruction  of  human  life,  in  its  inchoate  state,  does  not  come 
within  the  definition  of  homicide.  It,  therefore,  requires  a  special 
provision.  This  is  made  in  the  fourth  chapter  of  this  title.  Whether 
the  object  be  effected  by  external  violence,  or  the  administration  of 
drugs  internally,  and  whether  with  or  without  the  consent  of  the 
woman,  the  crime  is  committed  ;  the  punishment  is  increased  if  the 
delinquent  be  a  physician  or  surgeon  ;  and  if  death  is  caused  by  the 
attempt,  it  is  murder.  Exceptions,  however,  are  made  of  the  case 
where  the  effect  is  produced  by  medical  advice,  with  the  intent  of  sav- 
ing the  life  of  the  mother. 

A  great  personal  injury  may  be  sustained  by  the  swallowing  or  in- 
haling of  deleterious  substances.  If  these  are  maliciously  administer- 
ed, it  constitutes  a  crime  which  forms  the  subject  of  the  fifth  chapter 
of  this  title,  in  which  the  punishment  is  graduated  according  to  the 
intent  and  effect  of  the  offence. 

We  come  now  to  the  consideration  of  the  important  title  of  Homi- 

The  first  section  of  this  chapter  lays  the  foundation  for  all  the 

others,  by  the  definition  of  this  act,  and  illustrations  and  explanations 

)  remove  every  doubt  as  to  the  force  of  the  different  words  used  in 
such  definition.  The  three  great  divisions  used  in  our  present  law 
are  retained,  and  homicide  is  considered,  in  the  subsequent  sections, 
as  justifiable,  excusable  or  culpable.  All  of  these  are  defined,  explained, 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  181 

and  illustrated.  The  rules  by  which  they  are  to  be  distinguished  are 
clearly  laid  down,  and  the  exceptions  specially  noted.  Homicide  is 
justified,  by  the  requisition  of  law,  in  cases  where  death  is  legally  inflict- 
ed as  a  punishment,  or  where  it  occurs  in  resisting  an  enemy  in  the 
usual  mode  of  warfare,  excluding  poisoning  and  assassination?  which 
terms  are  defined  in  the  text.  It  is  also  permitted,  and  therefore  jus- 
tifiable in  the  performance  of  other  duties  to  the  state.  The  first  of 
these  is  the  execution  of  the  lawful  orders  of  magistrates  or  courts. 
This  general  principle  is  in  conformity  with  our  existing  law  ;  but 
there  is  no  part  of  it  in  which  accessible  and  clearly  intelligible  rules 
are  more  wanted  for  the  government  of  the  citizens.  They  are  called 
on  by  the  first  duties  to  the  state  to  obey  the  orders  of  the  magistrate, 
if  they  are  legal  ;  if  the}'  are  illegal,  they  expose  themselves  to  the 
highest  penalties  of  the  law.  One  mode  of  executing  the  order  en- 
titles the  citizen,  who  performs  the  duty,  to  the  highest  praise,  and 
the  other  subjects  him  to  capital  punishment.  What  in  one  man,  in 
relation  to  his  condition  or  offence,  is  a  duty,  in  another  is  a  crime  ; 
and  yet  the  rules  by  which  we  are  to  be  guided  through  these  narrow 
winding  paths,  bordered  by  snares  and  precipices,  in  which  a  false 
step  entangles  us  in  ruin  or  sinks  us  to  destruction  ;  these  rules 
are  not  to  be  found  in  the  positive  enactment  of  our  law.  A  few  gene- 
ral principles  are  laid  down  by  elementary  writers  ;  numerous  and 
sometimes  contradictory  practical  deductions  are  made  by  decisions  in 
particular  cases;  and  the  magistrate  and  the  officer,  as  well  as  the  citi- 
zen who  is  to  aid  them,  are  left  at  their  peril  to  discover  the  law,  in 
the  different  volumes  in  which  it  is  contained,  and  to  reconcile  the  con- 
tradictory opinions  and  decisions  of  which  it  is  composed.  This  de- 
fect in  legislation  is  an  obvious  and  fatal  one.  If  the  rules  cannot  be 
ascertained  until  the  case  arises,  then  no  one  ought  to  suffer  for  con- 
travening them,  for  they  are  no  rules.  It  is  a  solecism  to  call  them 
such.  If  they  can  be  established,  it  is  a  cruel  and  a  wicked  omission 
to  neglect  it.  It  is  a  tyranny  to  establish  and  not  promulgate  them. 
But  rules  laid  down  in  books,  which,  from  their  language,  their  ex- 
pense, or  other  circumstances,  are  not  accessible,  although  they  may  be 
printed  and  published,  are  not  promulgated.  The  conclusion  from 
these  premises  is  irresistible,  easily  drawn,  and  nowise  honourable  to 
the  state  of  our  criminal  jurisprudence. 

An  attempt  is  made  to  remedy  this  evil  in  the  proposed  code.  Se- 
veral subdivisions  of  this  section  contain,  in  order  ;  first,  the  rules  as 
to  the  order  itself  which  is  to  be  executed,  and  the  magistrate  from 
whom  it  emanates  ;  and  secondly,  those  which  regard  the  person  exe- 
cuting it,  and  the  manner  in  which  the  duty  is  to  be  performed.  To 
review  these  would  be  to  repeat  the  provisions  of  the  code,  which  is 
the  less  necessary,  as  most  of  them  are  founded  on  principles  establish- 
ed by  the  best  decisions  under  our  present  law. 

The  next  duty  to  the  state,  in  the  performance  of  which  homicide 
may  be  justified,  as  analogous  to  the  former,  is  that  which  arises  from 
the  opposition  to  rebellion,  insurrection  and  riot.  Here  again  the 
same  importance  of  regulation  is  preserved  ;  and  is  as  well  in  this  part 
of  the  code,  in  which  the  principles  are  laid  down,  as  in  the  Code  of 
Procedure,  will  be  found  all  that  is  necessary  to  guide  the  magistrate 
in  giving,  and  those  whose  duty  it  is  in  executing  his  orders  on  the 


182  INTRODUCTORY  REPORT  TO 

important  subjects  of  arrests,  self-defence,   and   the  suppression  of 
breaches  of  the  peace. 

But  we  have  a  duty  to  perform,  not  only  to  the  state,  in  obedience  to 
the  lawful  orders  of  its  magistracy,  and  in  resistance  to  its  foreign 
and  domestic  enemies  ;  there  is  also  another  which  we  owe  to  our  fami- 
lies and  ourselves,  in  the  necessary  defence  of  person  or  property. 
Here  again  we  find  the  same  deficiency  in  our  existing  law,  that  has 
been  pointed  out  in  the  beginning  of  the  review  of  this  chapter  ;  and 
here  again  that  deficiency  is  attempted  to  be  supplied  by  the  establish- 
ment of  minute,  but  intelligible  and  distinct  rules,  to  designate  what 
resistance  may  be  offered  to  aggression,  and  to  limit  its  extent  both  in 
nature  and  degree  ;  and  with  this  ends  the  division  of  justifiable  homi- 
cide. 

The  designation  of  that  which  is  excusable,  is  contained  in  a  single 
and  a  short  section.  The  leading  distinction  between  this  division 
and  that  which  preceded  it  is,  that  the  homicides  described  in  the  first 
were  voluntary,  but  are  permitted  on  some  principle  of  public  good 
or  private  right ;  but  in  this,  are  involuntary,  but  unavoidable  by  com- 
mon prudence  or  care.  Thus  far,  from  the  very  definition  of  an 
offence,  none  of  the  acts  coming  within  the  purview  of  these  sec- 
tions can  be  denominated  such.  The  next  section,  however,  describes 
those  acts  of  homicide  which  assume  that  character.  When  we  in- 
quire whether  any  particular  act  is  an  offence,  this  mode  of  classifica- 
tion gives  us,  in  jurisprudence,  the  advantage  of  an  operation  some- 
thing like  the  arithmetical  one  of  proving  one  rule  by  another.  To 
show  a  given  act  of  homicide  to  be  an  offence,  it  must  not  only  be 
brought  within  the  definition  of  one  of  the  acts  of  that  nature  which 
are  designated  as  culpable,  but  it  must  be  excluded  from  those  which 
it  is  declared  may  be  justified  or  excused.  The  eighth,  and  last, 
section  of  this  chapter  treats  of  these  culpable  homicides,  and  each 
of  its  six  subdivisions  contains  the  description  of  one  of  these  offences, 
which,  beginning  with  the  lowest  degree,  where  no  culpable  intention 
can  be  attributed  to  the  offender,  rise  to  murder  in  its  appalling  forms 
of  assassination  and  parricide. 

Those  who  are  satisfied  with  the  provisions  of  the  English  law, 
which  knows  only  two  degrees  of  culpable  homicide,  must  be  startled 
by  the  number  indicated  in  this  chapter.  But  it  is  hoped,  and  believed, 
that  a  little  attention  to  the  subject  will  show  the  necessity  of  making 
them.  By  our  present,  which  is  the  English  law,  all  culpable  homi- 
cide is  either  manslaughter  or  murder.  The  first  description  embraces 
two  kinds  of  offences  that  are  evidently  very  different  in  degree.  It. 
confounds  voluntary  and  involuntary  homicide  in  the  same  name,  and 
applies  to  both  the  same  punishment.  The  destruction  of  human  life 
by  want  of  care,  even  without  any  design  to  do  the  smallest  mischief, 
is  certainly  reprehensible  ;  but  surely,  a  wise  lawgiver  would  not  say 
that  it  was  the  same  offence  with  that  of  designedly  inflicting  death, 
under  the  influence  of  passion,  although  that  passion  had  adequate 
cause  in  a  violent  provocation  ;  nor  would  he  identify  with  these,  death 
caused  by  negligence  in  the  doing  of  an  unlawful  act  not  amounting  to 
a  crime.  Yet,  all  this  is  done  by  our  present  jurisprudence  ;  and  this, 
with  some  other  defects,  are  endeavoured  to  be  remedied  by  the  sys- 
tem which  it  is  proposed  to  substitute. 

The  preceding  sections  having  taught  us  what  homicides  were  justi- 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  183 

fied,  permitted,  or  excused  ;  those  described  in  the  one  we  are  now  re- 
viewing, need  no  other  definition  than  that  they  are  such  as  cannot  be 
brought  within  any  of  the  preceding  classes  ;  or,  in  other  words,  that 
those  come  within  the  description  of  culpable  homicides  which  cannot, 
according  to  the  preceding  provisions,  be  justified  or  excused.  Next 
comes  the  designation  of  the  different  degrees  of  culpability.  Here 
the  first  great  distinction,  between  negligence  and  design,  is  marked, 
and  culpable  homicides  are  divided  into  negligent  and  voluntary.  But 
as  different  degrees  of  negligence  mark  a  greater  or  less  attention  to 
the  value  of  human  life,  and  as  extreme  provocation,  or  the  want  of 
any,  shows  a  greater  or  less  degree  of  malignity  in  the  voluntary  in- 
fliction of  death,  so  each  of  these  require  subdivisions,  in  order  to  de- 
signate the  degree  of  guilt,  and  assign  its  correspondent  punishment. 

The  first  and  lowest  degree  of  negligent  homicide  is  one  that  differs 
but  little  in  its  circumstances  from  excusable  homicide  ;  but  as  it  does 
differ,  it  must  be  an  offence.  It  is  defined  as  homicide  involuntarily 
inflicted  in  the  performance  of  a  lawful  act,  in  which  there  is  no  ap- 
parent risk  of  life,  by  ordinary  means  ;  but  without  that  care  and  pre- 
caution which  a  prudent  man  would  take  to  avoid  the  risk  of  destroy- 
ing human  life.  It  will  be  best  understood  by  a  perusal  of  this  division 
of  the  section.  But  it  may  here  be  generally  comprehended  by  repeat- 
ing one  of  the  examples  by  which  it  is  there  illustrated.  "When 
death  is  casually  inflicted  by  discharging  fire-arms  which  are  believed 
not  to  be  loaded,  without  examining  whether  they  are  so  or  not,  it 
constitutes  this  offence.  If  the  examination  be  made,  and  owing  to  some 
unknown  cause,  although  loaded,  they  appear  to  be  empty  ;  or,  if  un- 
known to  the  person  using  them,  they  have  been  loaded  immediately 
after  the  examination,  due  caution  has  been  used,  and  there  is  no  of- 
fence.7' A  very  slight  punishment  is  annexed  to  this  offence,  and  I 
doubted  long  whether,  as  the  definition  assumes  the  absence  of  any  intent 
to  injure,  the  horror  and  grief  naturally  caused  by  so  fatal  a  consequence 
would  not,  in  itself,  be  a  sufficient  punishment  for  the  negligence  ;  that 
these  sensations  must  inflict  a  suffering  much  more  severe  than  any  the 
law  could  with  justice  award,  cannot  be  questioned.  But,  after  much 
hesitation,  I  concluded,  that  this  consideration  would  not  justify  me  in 
omitting  to  place  so  fatal  an  act  of  negligence  in  the  class  of  offences. 
It  would  induce  us  totally  to  excuse  all  negligent  and  even  many  vol- 
untary homicides.  The  depravity  that  can  conquer  those  feelings  of 
remorse  and  mental  anguish,  with  which  nature  avenges  the  destruction, 
of  human  life,  is  not  suddenly,  easily,  or  frequently  attained.  He 
who,  yielding  to  sudden  passion,  takes  the  life  of  an  adversary  who 
has  provoked  him,  feels  the  operation  of  this  internal  engine  of  punish- 
ment as  keenly  as  he  does  who  is  the  negligent  or  even  the  casual  in- 
strument of  a  similar  event.  Nor  is  even  the  deliberate  murderer 
exempt ;  and  the  poets  who  have  painted  the  most  closely  from  nature, 
have  always  truly  represented  the  subsequent  remorse  to  augment  in 
proportion  to  the  previous  atrocity  of  the  murder.  Richard  is  haunted 
by  the  ghosts  of  his  victims.  Macbeth  exclaims,  "  I  scarce  can  think 
on  what  I've  done — look  on  it  again,  I  dare  not ;"  and  the  reason  of 
his  tiger-hearted  instigator  and  accomplice  reels  under  the  weight  of 
her  remorse.  Indeed,  of  the  two,  the  homicide  from  sudden  passion 
may  reasonably  be  supposed  to  be  endowed  with  keener  sensations,  and 


184  INTRODUCTORY  REPORT  TO 

therefore  more  sensibly  to  feel  the  pang  of  remorse,  than  he  does  who 
has  shown  so  much  indifference  to  the  life  of  a  human  being  as  not 
to  take  the  proper  precautions  for  its  preservation. 

Besides,  the  frequency  of  these  accidents,  as  they  are  incorrectly 
called,  seemed  to  demand  some  interposition  of  the  law.  At  present 
they  are  considered  and  classed  as  excusable.  But  when  they  shall  be 
stigmatized  as  offences ;  when  the  voice  of  the  law  shall  direct  the 
exercise  of  that  circumspection  which  prudence  now  in  vain  commands, 
it  is  believed  that  greater  caution  will  be  the  result ;  and  instances  are 
not  wanting  to  show,  that  a  positive  inhibition,  accompanied  by  the 
fear  of  a  comparatively  slight  punishment,  has  prevented  men  from  in- 
curring risks  and  rushing  on  dangers  of  the  most  serious  nature(a). 

The  next  offence  is  negligent  homicide  in  the  second  degree.  It 
differs  from  the  former  only  in  the  greater  want  of  caution.  It  is  de- 
fined as  that  which  is  involuntarily  committed  in  the  performance  of  a 
lawful  act,  but  under  circumstances,  in  a  manner,  or  by  means,  which 
cause  an  apparent  danger  of  inflicting  death,  without  due  precaution 
to  avoid  such  danger.  Every  word  of  this  definition  that  could,  by 
the  most  forced  construction,  carry  any  more  than  one  meaning,  is 
carefully  explained  in  the  text  ;  and  the  whole  is  illustrated  by  examples, 
of  the  crime  generally  ;  of  the  circumstances;  of  the  apparent  risk, 
as  applied  to  the  manner  of  doing  the  act ;  and  to  the  means  used. 
For  all  these  reference  is  made  to  the  text.  As  this  is  a  comprehen- 
sive division,  much  greater  latitude  of  discretion  is  given  to  the  judge, 
in  the  apportionment  of  the  punishment,  than  is  usual  in  other  parts  of 
the  code. 

The  concluding  division  under  this  head,  of  negligent  homicides, 
relates  to  such  offences,  of  this  nature,  as  are  committed  in  the  perform- 
ance of  other  unlawful  acts.  This  is  only  to  be  remarked  inasmuch  as 
it  graduates  the  penalty,  according  to  the  nature  of  the  illegal  act,  in 
the  performance  of  which  the  homicide  was  negligently  committed. 

We  now  come  to  the  class  of  Culpable  Homicides  that  are  voluntary. 

Still  pursuing  the  same  plan,  of  making  the  preceding  definitions  a 
key  to  those  which  follow,  voluntary  homicide  is  declared  to  be  a  crime 
in  all  cases  where  it  cannot  be  justified  or  excused  by  any  of  the  rules 
before  laid  down.  It  comprises  two  divisions  only,  manslaughter  and 
murder.  These  denominations  are  retained  from  our  present  law;  but 
the  first,  being  stripped  of  the  whole  class  of  negligent  homicides,  no- 
thing remains  for  it  but  those  acts  by  which  the  life  of  another  is  taken 
by  one  who  is  under  the  influence  of  a  sudden  passion — a  crime  so  dif- 
ferent from  that  which  produces  the  same  fatal  effect,  after  deliberation, 
as  to  call  for  a  different  name,  and  to  merit  a  milder  punishment.  But 
it  is  still  a  crime;  one  difficult,  under  certain  circumstances,  to  distin- 
guish from  murder;  as  fatal  in  its  consummation,  but  drawing  the  dis- 
tinction made  in  its  favour  by  the  law  from  two  circumstances  :  some 
indulgence  to  the  infirmity  of  our  nature,  when  passion  is  excited  by 

(a)  A  traveller  in  Prussia,  during  the  reign  of  Frederick,  has  told  us,  that  the  cavalry  re- 
views of  that  great  disciplinarian  were,  at  one  time,  very  much  embarrassed  by  the  dragoons 
frequently  falling  from  their  horses,  whereby  many  of  them  had  their  bones  broken  or  were 
trampled  to  death.  A  general  order  made  a  fall  punishable  with  thirty-nine  stripes  ;  after 
which  it  was  found,  that  their  horsemanship  was  so  much  improved,  that  falls  became  very 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  185 

an  adequate  cause,  and  some  reprehension  for  the  injury  that  provoked 
the  passion.  The  difficulty  of  drawing  the  line  that  separates  this  crime 
from  the  heinous  one  of  murder  ;  the  high  importance  that  it  should  be 
distinctly  drawn,  were  felt  in  framing  the  provisions  of  this  section. 
The  numerous  cases  in  the  English  law  on  this  subject  were  studied, 
and  all  those  principles  drawn  from  them  which  could  give  precision 
to  the  rules  that  are  laid  down.  Yet,  after  all  that  has  or  can  be 
done  to  give  precise  limits  to  the  definitions  of  crimes,  which  depend 
so  much  as  this  does  on  the  ever-varying,  and  for  the  most  part,  the 
inscrutable  workings  of  the  perpetrator's  mind,  much  must  be  left  to 
the  discernment  of  the  judge.  But,  although  we  cannot  do  all,  it  is 
our  duty  to  do  that  which  is  practicable,  and,  in  cases  of  this  high  im- 
portance, to  leave  as  little  as  possible  to  discretion. 

Manslaughter,  then,  is  defined  to  be  homicide  committed  voluntarily, 
under  the  immediate  influence  of  sudden  passion,  arising  from  an  ade- 
quate cause;  and  it  is  provided,  that  all  the  terms  used  in  the  definition 
are  to  be  strictly  construed  in  applying  it  to  any  particular  act.  Each 
of  these  terms  is  commented  upon  in  the  law.  General  rules  are  pre- 
scribed for  deciding  what  species  of  injury  shall,  and  what  shall  not, 
be  deemed  an  adequate  cause  for  the  passion  that  causes  the  act;  and  it 
is  supposed  that  the  intention  of  the  law  on  this  important  point,  is  so 
clearly  expressed,  as  to  leave  to  the  jury  only  the  task  of  deciding,  in 
each  case,  whether  the  acts  and  intentions  of  the  party  bring  him  within 
its  purview. 

Having  defined,  described,  and  illustrated  by  examples,  and  confined 
within  precise  rules,  all  the  other  species  of  homicide,  we  are  now  to 
consider  the  last  and  highest  description  of  this  crime — murder.  The 
particular  attention  of  the  legislature  is  called  to  the  definition  of  this 
crime  in  the  new  code,  and  it  is  earnestly  desired  that  every  word  of 
it  may  be  weighed,  and  that  it  may  be  contrasted  with  the  description 
of  it  given  by  our  present  law,  and  that  the  one  may  be  sanctioned 
which  is  the  most  clear  and  explicit,  and  which  requires  the  least  re- 
ference to  other  sources  for  understanding  it.  By  the  code  it  is  thus 
described  :  "  Murder  is  homicide,  inflicted  with  a  premeditated  design, 
unaccompanied  by  any  of  the  circumstances  which,  according  to  the 
previous  provisions  of  this  chapter,  do  not  justify,  excuse,  or  bring  it 
within  some  one  of  the  descriptions  of  homicide  hereinbefore  defined." 
This  description  was,  as  the  projected  code  was  first  printed,  contained 
in  two  articles.  The  sense  was  precisely  the  same,  but  the  amendment 
consolidated  and  made  it  more  concise,  and  was  therefore  preferred. 
If,  then,  a  clear  idea  in  the  preceding  parts  of  this  chapter  has  been 
given  of  the  other  descriptions  of  homicide,  there  can  be  no  difficulty 
in  forming  one  of  this,  that  is  not  liable  to  error.  An  act  of  homicide 
occurs.  Did  the  circumstances  justify  it  ?  Did  they  excuse  it  ?  Does 
it  come  within  any  of  the  descriptions  of  negligent  homicide  ?  Is  it 
manslaughter  ?  If  either  of  these  questions  be  answered  in  the  affirma- 
tive, it  cannot  be  murder.  The  advantage  of  this  mode  of  description 
over  that  of  a  simple  definition  is  evident ;  for  should  any  words,  con- 
tained in  that  definition,  be  liable  to  misconstruction,  an  act,  properly 
coming  within  the  lower  degree  of  that  offence,  might  be  brought  within 
the  definition  of  the  higher.  The  act  of  taking  human  life  is  the  same 
in  all.  The  attention  should,  therefore,  if  we  mean  to  avoid  error,  be 
drawn  to  all  the  circumstances  that  would  bring  the  act  into  a  lower 
Y 


186  INTRODUCTORY  REPORT  TO 

decree  of  offence,  before  we  inflict  on  it  the  punishment  due  to  the 
highest ;  and  the  law  should  be  so  framed  as  to  oblige  those  who  ad- 
minister it  to  make  this  examination.  By  the  new  code,  no  jury  can 

(.onviet no  judge  can  condemn  for  murder,  until  they  have  carefully 

examined  all  the  lighter  shades  of  homicide,  and  are  convinced  that  the 
circumstances  of  the  case  do  not  bring  the  accused  within  any  of  them. 
The  form  of  the  law  imposes  this  obligation.  It  cannot  be  dispensed 
with;  for  there  is  no  other  description  of  the  crime  of  murder  than  that 
it  is  homicide  that  is  not  one  of  those  before  described.  Now  take  the 
English  description  of  the  same  crime,  and  see  whether  the  same  result 
is  produced.  Coke's  description  of  the  crime  is  the  one  most  generally 
sanctioned  by  decisions  and  commentators.  It  is  this  :  "  when  a  person 
of  sound  memory  and  discretion  unlawfully  killeth  any  reasonable 
creature,  in  being,  and  under  the  king's  peace,  with  malice  afore- 
thought, either  express  or  implied"(a).  Now  suppose  a  jury  empan- 
nelled  to  try  an  indictment  for  murder,  and  after  the  circumstances  of 
the  case  have  been  detailed  by  the  evidence,  this  description  is  read  to 
them,  and  they  are  directed  by  the  court,  under  the  sanction  of  their 
oaths,  to  apply  it  to  the  case.  There  is  scarcely  a  word  in  it  that,  to 
a  conscientious  man,  will  not  afford  master  for  serious  doubt.  The 
perpetrator  must  have  been  of  sound  memory  and  understanding. 
What  a  scope  does  this  give  for  equivocation.  What  a  field  does  it  open 
for  inquiry.  What  has  the  soundness  of  memory  to  do  with  the  act  ? 
Be  the  faculty  ever  so  imperfect,  how  does  it  affect  the  guilt  ?  And  as 
to  discretion,  if  a  sound  discretion  were  necessary  to  constitute  guilt, 
no  one  could  be  guilty;  for  surely  he  commits  the  highest  indiscretion 
who  takes  the  life  of  another,  and  exposes  his  own  to  consequences  of 
detection  and  punishment.  The  killing  must  be  also  unlawful.  Here 
we  have  one  of  the  features  of  the  description  contained  in  the  code, 
but  without  the  faculty  which  it  affords  of  determining,  by  a  reference  to 
a  few  preceding  pages,  whether  the  killing  be  lawful.  The  person 
killed,  to  constitute  the  crime,  must  be  a  reasonable  creature.  Neither 
a  newborn  infant,  nor  an  idiot,  nor  a  madman,  nor  one  suffering  in  the 
delirium  of  a  fever,  or  stupified  by  opium  or  liquor,  comes  within  this 
part  of  this  description  according  to  the  plain  meaning  of  the  words. 
Again,  who  is  in  the  king's  peace  ?  What  is  malice  aforethought  ?  Is 
there  any  malice  that  is  after  thought?  What  is  express  malice?  When 
shall  it  be  implied?  Thus  we  find  that  there  is  scarcely  a  word  in  the 
description  of  a  crime  so  important  to  be  known,  that  will  not  raise  at 
least  a  doubt  in  the  mind  of  a  man  of  common  understanding  ;  and  it 
would"  be  difficult,  perhaps,  to  prove  any  description  of  the  crime,  which 
would  sufficiently  give  us  to  understand  its  precise  meaning,  without  a 
reference  to  the  definitions  of  those  homicides  which  were  not  included 
in  it.  I  am  certainly  aware  that  most  of  these  terms  have  been  ex- 
pounded by  commentators  and  illustrated  by  decisions,  and  that  a  re- 
course to  these  sources  of  information  would  teach  us  what  construction 
the  best  lawyers  and  judges  have  put  upon  them  ;  but  still  the  evil  re- 
curs. There  is  no  source  to  which  we  can  look  for  the  absolute  cer- 
tainty on  which  the  conscience  of  a  juror  ought  to  rest,  who  is  sworn 
to  decide,  and  the  definition  given  to  him  as  the  text  of  the  law:  he 
has  a  right  to  put  the  construction  which  his  understanding  adopts,  upon 

(a)  3  Inst.  87. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  187 

the  doubtful  words  ;  and  there  are  cases,  too,  in  which  the  expositors 
to  whom  he  is  directed,  are  not  themselves  agreed,  more  particularly 
in  what  respects  the  construction  of  malice,  express  or  implied — the 
great  pivot  on  which  this  definition  turns — and  one  of  which  it  is  so 
difficult  to  form  a  definite  idea,  that  I  have  purposely  excluded  it  from 
the  description  of  this  offence  in  the  code.  - 

I  may  be  deceived,  but  if  I  am  not  more  so  on  this  than  on  any  other 
provision  in  the  work,  the  law  on  the  subject  of  homicides,  in  their 
various  grades,  from  innocence  up  to  the  deepest  guilt,  is  rendered  by 
the  code  more  clear,  more  consonant  to  reason,  and  more  susceptible  of 
easy  execution  than  it  is  as  it  now  stands. 

Our  present  law  knows  but  one  grade  of  murder.  Yet  there  are  evi- 
dent aggravations  which  ought  to  be  marked  by  a  discreet  legislature. 
Four  have  been  adopted  in  the  code  that  is  presented  to  you. 

INFANTICIDE,  the  first  grade  above  that  of  common  murder,  is  distin- 
guished by  its  disregard,  not  only  to  the  feelings  of  humanity,  but  of 
nature;  but,  on  the  other  hand,  its  atrocity  is  so  much  lessened,  by  the 
deep  and  powerful  sense  of  shame  which  usually  prompts  it,  that  I 
doubted  some  time  whether  it  should  form  a  separate  class.  It,  however, 
after  due  consideration,  seemed  properly  to  occupy  a  place  between 
that  kind  of  voluntary  and  culpable  homicide,  committed  under  cir- 
cumstances that  would  not  reduce  it  strictly  to  manslaughter,  but  caused 
by  some  provocation,  yet  distinguishing  it  from  the  deeper  guilt  of 
ASSASSINATION,  which  is  the  next  grade. 

This  characteristic  is  applied  to  murderers,  from  considerations  drawn 
from  the  purpose  of  the  act,  the  means  by  which  it  was  accomplished, 
or  the  condition  of  the  person  suffering  by  the  crime.  The  purpose 
gives  it  this  name  when  it  is  committed  in  order  to  effect  another  crime, 
or  to  conceal  one  previously  committed,  when  its  object  is  to  obtain  an 
inheritance,  or  when  a  reward  is  given  and  taken  for  its  commission. 
The  means  characterize  murder  as  assassination,  when  it  is  perpetrated 
by  lying  in  wait,  by  arson,  by  poison.  The  condition  of  the  party 
murdered,  and  his  actual  situation,  also  raise  the  guilt  into  that  of  as- 
sassination, under  the  following  circumstances  :  when  the  sufferer  is  a 
woman;  a  man  above  the  age  of  seventy;  a  minor  under  the  age  of  Six- 
teen; a  person  in  a  dwelling-house  at  night;  asleep  any  where,  or  travel- 
ling on  the  high-road.  All  these  situations  and  conditions  imply  help- 
lessness and  security.  They  add  cowardice  and  treachery  to  the  guilt 
which  invades  them,  and  therefore  rank  it  in  this  grade  of  crime. 

But  if  these  cases  of  implied  security  and  protection  demand  the 
severe  animadversion  of  the  law,  in  a  much  higher  degree  does  that 
of  express  trust  and  confidence,  and  positive  treachery.  I  have,  there- 
fore, incorporated  as  a  third  class  of  aggravated  murder,  that  known 
to  the  Scottish  law  by  the  express  name  of  MURDER  UNDER  TRUST, 
and  have  described  it  as  "  that  which  is  committed  by  persons  stand- 
ing in  the  following  relation  to  the  party  murdered,  that  is  to  say: 
husband,  wife,  tutor  or  curator,  ward,  collateral  relations  within  the 
second  degree  inclusive,  master,  servant,  schoolmaster,  host,  guest, 
physician  or  surgeon ;  and  finally,  if  the  murder  be  committed  by  one 
upon  another,  who  has  reposed  confidence  of  safety  in  him,  on  an  ex- 
press or  implied  promise  of  fidelity  or  protection.  Murder  committed 
by  a  guide  or  conductor  on  the  land,  or  by  the  master  of  a  vessel  by 
water,  upon  a  traveller  whom  he  has  undertaken  to  conduct,  are  ex- 


1S8  INTRODUCTORY  REPORT  TO 

amplcs  of  this  last  description  of  murder  under  trust."  The  code,  in 
this  as  in  other  cases,  contains  articles  explanatory  of  all  the  words  used 
that  niijrht  be  understood  in  more  than  one  sense. 

PARRICIDE  is  the  last  species  of  murder.  The  English  law,  while  it 
punishes  the  murder  of  a  master  by  a  servant,  as  a  species  of  treason, 
expresses  by  no  mark  of  particular  abhorrence  that  of  a  father  by  his 
son.  Solon,  it  is  said,  thought  it  too  atrocious  to  be  supposed  possible, 
and  therefore  omitted  the  mention  of  it  in  his  code.  Modern  times 
afford  too  many  proofs  of  its  recurrence  to  justify  the  same  expressive 
silence  with  respect  to  it. 

The  punishment  for  murder,  unaggravated  by  any  of  the  circum- 
stances which  bring  it  within  either  of  the  denominations  above  men- 
tioned, is  imprisonment  for  life.  The  Code  of  Prison  Discipline  contains 
the  increased  privations,  and  aggravations  of  punishment  that  are  applied 
to  higher  degrees  of  this  crime. 

Suicide  does  not  enter  into  the  catalogue  of  offences,  for  the  reasons 
offered  in  the  report  on  the  plan  of  a  penal  code(a)  ;  but  a  penalty  is 
provided  to  operate  upon  those  who  aid  the  unhappy  sufferer  in  com- 
mitting this  act  of  desperation,  or  who,  having  the  power,  do  not  prevent 
its  execution. 

This  title  could  not  conclude  without  a  chapter  in  relation  to  duels  ; 
that  practice  which,  in  modern  times,  seems  to  have  proved  how  ineffi- 
cient are  all  laws  when  opposed  to  public  opinion,  and  to  what  degree 
the  fear  of  shame  will  prevail  over  that  of  punishment. 

In  the  whole  scope  of  criminal  legislation  there  is  no  subject  which 
presents  greater  difficulties.  Severe  penalties  have  been  denounced 
against  it  in  vain  ;  and  it  is  the  more  difficult  to  be  eradicated,  because 
it  prevails  most  where  courage,  a  fear  of  disgrace,  and  a  sense  of  personal 
dignity,  are  most  perfect. 

One  cause  of  this  disorder  in  society  has  been  anticipated  in  that  part 
of  this  report  which  treats  of  injuries  to  reputation.  Where  the  law 
gives  no  such  relief  as  ought  to  satisfy  those  who  conceive  themselves 
disgraced  by  imputations  on  their  honour  or  integrity,  as  long  as  honour 
and  integrity  are  necessary  to  happiness  in  society,  human  passions  will 
endeavour  to  supply  the  deficiencies  of  the  law.  But  the  law,  as  it  now 
stands,  gives  a  partial  remedy  in  those  cases  of  defamation  only,  which 
imply  a  want  of  integrity  or  impute  the  commission  of  a  gross  crime; 
and  we  accordingly  find  that  redress  is  sought  by  an  application  to  the 
laws  for  injuries  of  that  nature  more  frequently  than  by  appeals  to  arms; 
while  the  charge  of  mendacity,  or  of  a  deficiency  in  the  courtesies  of 
life,  are  more  frequent  causes  of  duels  than  imputations  of  serious  crimes. 
Why  is  this  ?  It  is  because  the  law  gives  some  relief  in  the  one  case — 
none  in  the  other.  One  part  of  the  remedy  provided  by  the  code  is 
suggested  by  this  consideration.  The  other  is  drawn  from  the  motive 
that  leads  to  the  offence  :  this  is,  in  most  cases,  a  desire  to  possess  that 
degree  of  standing  in  society  which  raises  the  possessor  in  the  esteem 
of  his  fellow  citizens,  and  gives  him  a  right  to  expect  those  distinctions 
and  offices  to  which  his  talents  may  entitle  him. 

then  we  can  procure  an  adequate  remedy  by  law  for  injuries  to 
reputation,  and  make  an  exclusion  from  office  and  civil  distinction  the 
consequence  of  any  attempt  to  usurp  the  functions  of  the  law  :  if,  by 
proper  penalties,  we  give  to  those  who  reluctantly  aid  in  encounters  of 

(a)  See  page  16. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  189 

this  nature,  a  good  pretext  for  refusing  their  co-operation,  while  we 
take  away  that  which  the  law  now  affords  them,  for  refusing  to  give 
evidence  against  their  principals,  we  shall  do  much  to  lessen  the  fre- 
quency of  this  practice,  and  by  giving  a  turn  to  public  opinion,  in  time, 
to  extirpate  it. 

Beginning  at  the  source  of  the  evil,  the  first  provision  of  the  chapter 
is  to  make  it  punishable  to  use  insulting  words,  or  to  make  an  assault 
with  the  intent  either  of  provoking  a  challenge  or  disgracing  the  party 
if  he  should  not  give  it ;  and  in  order  that  a  prosecution,  for  such  an 
offence,  may  be  made  the  means  of  producing  an  honourable  satisfac- 
tion, the  next  article  provides,  that  if  the  defendant  shall  make  any  de- 
nial, explanation  or  acknowledgement,  which,  in  the  opinion  of  the 
court,  ought  to  satisfy  the  honour  of  the  prosecutor,  they  shall  direct 
the  same  to  be  published,  with  their  opinion,  declaring  it  to  be  satisfac- 
tory, and  dismiss  the  defendant;  and  where  no  such  acknowledgement 
is  made  before  judgment,  it  shall,  if  given  against  the  defendant,  con- 
tain a  clause  that  it  shall  be  void  as  to  all  but  costs,'  in  case  the  defend- 
ant shall  make  such  acknowledgement  as  shall  be  satisfactory  to  the 
prosecutor;  and  in  any  prosecution  under  this  article,  if  the  offence  be  a 
charge  affecting  the  honour  or  reputation  of  the  person  making  the 
complaint,  and  the  proof  on  the  trial  show  such  charge  to  be  unfounded, 
the  court  shall  make  that  declaration  in  the  sentence,  and  cause  it  to  be 
published  at  the  expense  of  the  defendant,  and  the  truth  of  such,  charge 
shall,  if  the  prosecutor  desire  it,  be  tried  by  the  jury. 

These  provisions  are  entirely  new.  They  give,  what  the  law  has 
hitherto  denied,  satisfaction  for  those  species  of  insults  which  most 
commonly  lead  to  duels,  and  satisfaction  of  a  species  that  the  most 
chivalrous  need  not  blush  to  seek  or  to  receive  ;  and  insomuch,  they 
are  calculated  to  prevent  those  fatal  encounters,  which  few,  if  any  of 
those  who  engage  in  them,  would  not  avoid,  if  any  other  mode  were 
provided  by  which  they  could  escape  disgrace.  If,  however,  the  parties 
refuse  this  remedy  for  their  wrongs,  and  give  or  accept  a  challenge  to 
fight  a  duel,  although  it  should  not  take  place,  the  penalty  is  imprison- 
ment in  close  custody  from  two  to  six  months,  and  a  suspension  of 
political  rights  for  four  years ;  if  the  duel  take  place,  the  penalty  is  in- 
creased by  a  longer  period  of  imprisonment,  and  a  protracted  suspension 
of  rights  both  civil  and  political,  in  proportion  to  the  injury  resulting 
from  such  conflict ;  if  it  result  in  death,  the  imprisonment  is  extended 
to  four  years  ;  and  all  political  rights,  and  the  civil  rights  of  the  first 
and  third  class,  are  forfeited  for  ever.  If  the  wound  which  produces 
death  is  inflicted  by  treachery,  it  is  declared  to  be  murder  by  assassina- 
tion. The  treachery  intended  by  this  provision,  is  defined  to  be  the 
breach  of  any  rules  made  for  conducting  the  combat,  or  by  taking  any 
other  advantage  that  could  not  be  supposed  to  have  been  intended  to  be 
given;  and  whatever  may  have  been  the  rules  agreed  upon,  it  is  declared 
to  be  assassination,  if  the  mortal  wound  be  given  after  the  party  is  dis- 
armed or  otherwise  incapable  of  resistance  ;  or,  if  the  party  inflicting 
the  mortal  wound  have  obtained  the  power  of  doing  it  without  risk  to 
himself  by  the  effect  of  a  chance  previously  agreed  upon.  These  two 
last  provisions  are  intended  to  put  an  end  to  a  ferocious  practice  some- 
times resorted  to  in  duels;  which  it  is  thought  may  be  done,  as  much  by 
stigmatizing  them  by  the  designation  of  treachery  and  assassination,  as 
by  the  severe  punishment  assigned  to  them,  which  punishment  there 


190 

will,  in  such  cases,  be  no  disposition  in  the  prejudices  of  jurors  to  avoid 
inflicting.  However  imperative  we  may  make  the  language  of  the  law, 
it  loses  its  force  when  it  includes  in  the  same  prohibition,  by  the  same 
name,  and  under  the  same  penalty,  acts  different  in  their  motives,  cir- 
cumstances and  effects.  We  may,  in  our  statutes,  give  the  name  of 
murder  to  death  occasioned  by  a  duel;  but  the  world  will  not  adopt  the 
appellation  ;  and  a  combat,  sanctioned  by  the  irresistible  command  of 
public  opinion,  and  marked  by  no  circumstances  of  peculiar  malignity, 
will  never  be  considered,  prosecuted  or  punished,  as  an  assassination. 
If  you  wish  to  have  it  punished  at  all,  it  must  be  by  its  own  name,  and 
a  proportionate  punishment,  nor  must  that  be  an  infamous  one.  Put 
what  is  called  a  fair  duellist  on  a  footing  with  a  thief  or  a  murderer,  and 
you  assure  his  impunity.  Consign  him  to  a  temporary,  close,  but  not 
degrading  imprisonment;  take  away  from  him  all  hope  of  political  pre- 
ferment; and  seeing  that  his  conviction  and  its  consequences  cannot  be 
escaped,  he  will  gladly  avail  himself  of  the  opportunity  offered  by  the 
laws,  of  throwing  off,  without  disgrace,  the  tyranny  of  custom  ;  for 
there  is  this  peculiarity  in  the  offence  of  which  we  now  speak,  that  nine 
times  in  ten  it  is  most  reluctantly  committed  by  all  who  are  parties  to 
it.  Let  the  severe  punishment,  then,  be  reserved  for  treachery  and  fe- 
rocity; inflict  a  mild  penalty  on  duels  fairly  conducted  ;  punish  the  in- 
sults which  lead  to  them,  and  you  will  insure  the  execution  of  the  law; 
furnish  a  fair  excuse  for  even  the  most  high-minded  to  avoid  incurring 
the  disadvantages  which  it  creates,  and  do  more  than  has  been  yet  done 
to  abolish  this  barbarous,  unequal  and  unjust  mode  of  settling  private 
quarrels. 

If  prosecuting  officers  had  always  used  the  same  diligence  in  bringing 
duellists  to  justice  that  they  have  shown  in  the  case  of  other  offenders 
against  the  laws,  although  the  accused  might  escape  the  severe  penal- 
ties of  the  law  from  the  lenity  of  jurors,  yet  the  risk,  inconvenience, 
solicitude  and  expense  of  the  trial,  would  deter  many,  particularly  those 
who  had  aided  as  witnesses  or  seconds;  but  there  seems  to  be  a  general 
tacit  consent,  on  the  part  of  the  magistrates,  attorneys  for  the  state,  and 
grand  jurors,  that  there  is  something  dishonourable  in  sueh  prosecutions, 
and  that  they  form  an  exception  to  the  oath  of  office,  and  are  not  to  be 
prosecuted,  unless  on  the  most  direct  application,  and  on  producing  the 
fullest  proof.  How  else  shall  we  account  for  the  open,  notorious,  flagrant 
breaches  of  the  law  so  frequently  taking  place  almost  in  the  presence  of 
the  magistrate,  the  grand  jurors,  and  the  prosecuting  officer,  without 
any  instance. of -prosecution.  To  remedy  this  evil,  the  code  provides, 
that  the  attorney-general  and  district  attorneys  shall  make  a  declaration 
on  oath,  and  also  make  an  honorary  declaration,  that  they  consider  the 
execution  of  laws  against  duelling  as  forming  no  exception  to  their  duty 
of  carrying  the  laws  into  effect;  and  that  they  will,  by  all  lawful  means, 
prevent  any  intended  duel  which  comes  to  their  knowledge,  and  pro- 
secute all  offences  against  that  part  of  the  code.  Still  further  to  prevent 
this  offence,  no  person  elected  or  appointed  to  any  office,  civil  or  mili- 
tary, judicial  or  executive,  shall  exercise  the  same,  unless  he  shall  de- 
clare, on  oath,  that  he  has  not  and  will  not  commit  any  of  the  offences 
described  in  this  chapter.  I  was  not  unapprized  when  these  provisions 
were  recommended,  that  this  expedient  had  been  partially  resorted  to 
in  some  of  the  states,  and  that  it  had  not  been  deemed  a  proper  remedy. 
But  I  apprehend,  that  in  the  cases  where  it  has  appeared  to  fail,  it 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  191 

was  not  fully  or  fairly  tried  ;  and  I  have  from  the  first  authority,  that 
in  one  state,  at  least,  it  had  proved  so  nearly  effectual  as  to  render 
duels  extremely  rare  where  they  had  formerly  prevailed  to  a  most 
alarming  degree.  In  a  letter,  with  which  I  have  been  favoured  by 
the  chief-justice  of  the  United  States,  he  says  :  "  On  the  subject  of 
duelling,  some  contrariety  of  opinion  prevails.  I  am  among  those 
who  think  that  the  utmost  wisdom  is  required,  and  ought  to  be 
exerted,  for  its  prevention.  Originating  in  a  sense  of  honour,  the  pass- 
ion from  which  it  springs  must  be  consulted,  if  we  hope  to  suppress  it. 
We  must  array  ambition  against  this  false  honour,  as  its  only  equal 
competitor  in  a  young  and  ardent  mind.  The  privation  of  political 
rights,  which  you  propose,  is,  I  think,  particularly  adapted  to  this 
offence.  The  efficacy,  as  in  most  other  cases,  depends  on  the  cer- 
tainty that  the  law  will  be  executed.  Were  you  to  rely  on  public  con- 
victions alone,  this  certainty  would  not  exist.  Even  where  death 
ensues,  prosecutions  will  not  always  be  instituted.  When  it  does  not 
ensue,  still  more  where  the  duel  does  not  take  place,  the  whole  affair 
will  generally  be  overlooked;  and  challenges  will  not  be  completely 
restrained.  The  oath  you  require  from  every  person  appointed  or 
elected  to  any  office  whatever,  before  he  can  enter  upon  its  duties,  is, 
I  believe,  the  best,  if  not  the  only  measure  which  human  wisdom  can 
devise.  Its  efficacy  has  been  proved  in  Virginia,  where  a  similar  oath 
is  prescribed  and  has  been  rigidly  exacted.  The  consequence  is,  that 
duelling,  formerly  so  common,  is  now  scarcely  known  in  this  state, 
and  public  opinion  on  the  subject,  is  very  much  changed."  This 
high  authority,  supported,  as  it  always  is,  by  irrefragable  argument  for 
the  doctrines  stamped  with  its  approbation,  has  confirmed  me  in  the 
purpose  of  retaining  in  the  code,  which  is  submitted  to  you,  the  pro- 
visions I  have  detailed.  The  same  false  sentiment,  of  honour  which 
leads  to  a  breach  of  the  laws  in  committing  this  offence,  renders  its  pun- 
ishment more  difficult.  Witnesses  avail  themselves  of  the  principle, 
that  they  cannot  be  compelled  to  justify  any  thing  that  may  inculpate 
themselves  ;  and,  therefore,  neither  seconds,  nor  surgeons,  nor  any 
others,  who  were  voluntarily  present,  can  be  induced  to  testify  ; 
so  that  facts  notorious  to  the  world,  published  in  every  newspaper, 
which  must  be  known  and  understood  in  order  to  exonerate  the  parties 
from  the  foul  crime  of  assassination,  and  which,  therefore,  they  cannot 
wish  to  keep  secret,  can  rarely  be  proved  before  a  court  of  justice. 
In  order  to  obviate  this,  in  another  part  of  the  system  it  is  provided, 
that  those  who  have  served  as  seconds  in  a  duel,  or  witnessed  one  as 
surgeons,  shall  be  forced  to  give  testimony  against  the  principals  ;  and 
that  no  person,  so  examined,  shall  be  himself  punishable  for  the  offence. 
This,  together  with  the  forfeiture  of  political  and  civil  rights  incurred 
by  the  second,  if  he  be  convicted,  will  make  it  extremely  difficult  for 
principals  to  obtain  friends  to  attend  them  to  the  field  ;  and  the  dishon- 
ourable as  well  as  dangerous  suspicions  that  must  attach  to  the  survivor, 
in  a  duel  without  witnesses,  will  generally  prove  an  insurmountable 
obstacle  to  such  encounters. 

The  frequency  of  this  offence  in  our  state,  the  many  valuable  lives 
which  have  been  sacrificed  to  this  false  point  of  honour,  the  distress 
with  which  it  has  overwhelmed  whole  families,  and  the  particular  fero- 
city which  of  late  years  the  practice  has  assumed — all  justify  the 
attention  of  the  legislature,  and  call  for  its  special  interference  ;  riot  in 


192  INTRODUCTORY  REPORT  TO 

the  shape  of  severe  penalties  ;  not  by  denouncing  punishments  which 
are  never  inflicted  ;  but  by  preventive  remedies  ;  by  mild  laws,,  so 
framed  as  to  secure  their  execution,  and  by  taking  away,  in  most  cases, 
the  pretext  for  private  vengeance  which  was  offered  by  the  deficiencies 
of  public  justice. 

The  twentieth  title,  "  Of  offences  affecting  individuals  in  their  pro- 
fession or  trade,"  contains  only  a  reference  to  other  parts  of  the  code, 
in  which  offences,  under  that  description,  were  necessarily  noticed  ;  it 
being  found  impossible,  without  repetition,  or  anticipating  on  other 
provisions,  to  arrange  these  under  a  separate  head. 

The  condition  of  individuals,  or  that  relation  in  which  nature  and 
the  institutions  of  society  have  placed  them  with  respect  to  each  other, 
is  the  source  of  rights  as  well  as  of  other  enjoyments,  which  ought  to 
be  protected  by  law.  Our  present  laws  afford  this  protection  but  im- 
perfectly in  some  instances,  and  totally  deny  it  in  others.  The  substi- 
tution of  one  infant  for  another,  at  such  a  tender  age  as  renders  the  ex- 
change and  the  deceit  practicable  in  the  absence  of  the  parent  ;  the 
production  of  a  pretended  child  for  the  purpose  of  intercepting  an  in- 
heritance, are  not  offences  by  our  present  law  ;  yet  the  jurisprudence 
of  all  nations  gives  us  examples  of  these  deceptions.  The  destruction 
or  falsification  of  registers  of  births,  marriages  and  deaths,  for  the 
purpose  of  injuring  the  condition  of  another,  is  also  made  punishable 
by  proper  penalties.  The  common  practice  of  exposing  infants  was 
thought  to  be  not  improperly  ranged  under  this  head  ;  for  although  it 
is  certainly  an  injury  to  the  person,  and  as  such  might  have  been  classed 
in  that  division,  yet  the  principal  injury  is  that  offered  to  his  condition, 
by  causing  him  to  lose  the  advantages  of  the  relation  in  which  he  would 
have  been  placed  as  the  child  of  his  parents. 

The  conditions  arising  from  the  important  relation  of  husband  and 
wife,  may  be  affected  in  the  most  cruel  and  injurious  manner,  by  con- 
tracting a  second  marriage  during  the  existence  of  a  former  connexion 
of  the  same  kind.  While  the  civil  law  pronounces  the  last  marriage 
void,  the  penal  law  cannot  but  add  the  sanction  of  a  heavy  punishment 
to  a  fraudulent  act,  which  disappoints  the  hopes  of  domestic  happiness, 
deprives  the  offspring  of  the  first  union  of  a  parent's  care,  and  devotes 
those  of  the  second  to  unmerited  reproach,  and  all  the  other  evils  of 
illegitimacy.  Our  present  law  is  not  silent  on  this  last  offence;  but  the 
statute  wants  precision,  and  one  of  the  exceptions  would  seem  by  its 
language  to  give  the  means  of  evading  its  penalties  without  much  diffi- 
culty; for  it  declares,  they  shall  not  attach  to  any  one  whose  husband  or 
wife  shall  have  absented  him  or  herself  from  the  other  for  five  years, 
"  the  one  of  them  (that  is  the  husband  or  wife)  not  knowing  the  other  to 
be  living  within  that  time."  So  that,  if  the  offending  can  only  keep 
the  injured  party  in  ignorance  of  his  existence  for  five  years,  he  may 
contract  a  second  marriage  with  impunity.  Besides  correcting  this  in- 
accuracy, by  restricting  the  exception  to  the  innocent  party,  the  nine- 
teenth title  contains  many  other  articles  to  prevent  the  evasion  of  the 
law,  and  to  clear  up  doubts  in  a  matter  so  important  to  the  peace  of 
families  and  the  good  order  of  society. 

We  have  now  come  to  the  consideration  of  a  class  more  numerous  and 
more  difficult  to  repress,  than  any  in  the  catalogue  of  offences  :  those 
affecting  property  ;  which  word  is  here  used  precisely  in  the  sense 
given  to  it  in  the  Book  of  Definitions  ;  that  is  to  say,  that  it  conveys 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  193 

a  compound  idea,  composed  of  that  which  is  the  subject  of  property 
and  the  right  to  be  exercised  over  it.  In  relation  to  its  object,  property 
is  either  corporeal  or  incorporeal  ;  and  the  right  to  be  exercised  over 
it.  is  that  of  possessing  and  using  it  with  respect  to  that  which  is  cor- 
poreal, and  of  enforcing  and  transferring  it  with  respect  to  that  which  is 
incorporeal.  Consequently,  the  injuries  treated  of  in  this  title,  are  acts 
which  interfere  with  the  exercise  of  the  right,  which  may  be  done 
either  by  destroying  or  injuring  the  thing  which  is  the  object  of  pro- 
perty, or  by  removing  it  from  the  possession  of  the  owner,  and  ap- 
propriating it.  On  this  distinction  is  founded  the  division  of  these 
offences,  into  malicious  injuries  to  property,  and  fraudulent  appropria- 
tions of  it. 

1.  In  the  former,  the  term  malicious  is  intended  to  exclude  negligent 
or  unintentional  injuries,  which  are  left,  when  the  case  requires  it,  to 
the  operation  of  the  civil  law. 

The  most  common,  as  well  as  the  most  dangerous  offence  of  this 
nature,  is  that  called  arson  by  our  present  law,  which  imposes  the 
penally  of  imprisonment  for  life  on  the  burning  of  certain  enumerated 
buildings,  and  seven  years  at  hard  labour  for  the  burning  of  any  other 
building.  In  the  new  code  the  severest  punishment,  for  this  offence,  is 
fourteen  years'  penitentiary  imprisonment,  and  this  is  restricted  to  the 
burning  of  a  dwelling-house.  A  distinction  between  it,  and  other  build- 
ings not  inhabited,  being  obviously  proper.  The  destruction  of  other 
buildings  is  made  punishable  by  penalties  proportioned  to  their  value; 
and  the  chapter  contains  provisions  for  the  protection  of  all  property 
real  or  personal,  against  every  species  of  malicious  mischief.  All  the 
terms  used,  are  defined;  the  defect  in  our  present  law,  which  punishes 
no  other  injury  of  this  kind  to  property  but  by  burning,  is  supplied;  and 
two  articles  are  added,  which  provide  for  other  important  omissions' 
the  one,  the  malicious  destruction  of  title-deeds  or  evidences  of  property  • 
the  other,  the  removal  or  destruction  of  landmarks.  mentioned' 

A  second  chapter  provides  for  a  case  analogous  to  those 
in  the  one  that  precedes  it.  This  is  the  invasion  of  property  by  house- 
breaking;  which  is  defined  to  be  the  entry  into  a  house  secretly,  or  by 
force,  or  threats,  or  fraud,  during  the  night,  or  entry  by  day  and 
concealment  until  night,  with  the  intent  of  committing  a  crime.  As 
this  is  a  distinct  offence  from  that  of  appropriating  property  after  the 
house  has  been  so  entered,  and  is  completed  by  the  entry  itself  with 
the  intent  to  commit  any  species  of  crime,  whether  against  person  or 
property,  it  occupies  a  kind  of  middle  ground  between  malicious  injury 
to  property  and  the  next  division,  a  fraudulent  appropriation  of  it. 

2.  In  this  division,  it  is  believed,  that  several  valuable  improvements 
have  been  introduced,  both  in  the  arrangement  and  the  manner.  It  is 
arranged  under  six  heads,  and  treated  of  in  as  many  different  sections. 

The  first  is  the  fraudulent  appropriation  of  personal  property,  which 
had  been  delivered  to  the  offender  for  another  purpose.  This  section, 
by  several  precise  articles,  is  calculated  to  avoid  the  uncertainty  that 
has  prevailed  with  respect  to  constructive  thefts,  and  by  providing  an 
adequate  punishment,  which  was  totally  wanting,  for  fraudulent  breaches 
of  trust,  to  assign  to  each  of  these  offences  its  appropriate  penalty  and 
character. 

The  second  section  provides  for  a  case  that  is  now  either  always  con- 
founded with  theft,  or  considered  as  not  coming  within  the  scope  of 
Z 


194  INTRODUCTORY   KKI'OUT  TO 

any  penal  law.  I  mean  the  fraudulent  appropriation  of  properly  found. 
Whatever,  in  strict  morality,  may  he  the  character  of  such  act,  it  is 
clearly  less  in  degree  of  guilt  than  theft;  .while,  at  the  same  time,  the 
injury  to  the  owner,  and  the  knowledge  which  the  finder  must  have 
that  the  property  is  not  his,  ought  to  rank  it  as  an  offence  ;  though  one 
deserving  a  lighter  punishment. 

A  third  section  relates  to  the  violation  of  epistolary  correspondence; 
an  act  not  punishable  by  our  present  law;  but  one  which,  whether  we 
consider  the  want  of  principle  that  must  produce  it,  or  the  injury  it  is 
calculated  to  do,  ought  to  be  repressed  by  the  sanction  of  the  law.  The 
unauthorized  opening  and  reading  of  a  sealed  letter;  the  publication  of 
such  letter  so  improperly  opened;  the  taking  of  a  letter  from  another 
without  his  consent,  whether  sealed  or  not,  and  the  malicious  publica- 
tion thereof,  are  severally  declared  to  be  offences,  and  are  made  punish- 
able by  fine  and  imprisonment.  The  sanctity  of  private  correspondence, 
and  of  the  confidential  communications  of  friendship,  have  been  too 
often  violated  by  party  spirit  or  unprincipled  treachery,  in  our  day, 
to  require  any  argument  to  show  why  this  section  has  been  deemed 
necessary. 

The  two  next  sections  are  of  high  importance  in  this  general  division 
of  offences;  and  the  attention  of  the  legislature  is  particularly  invited 
to  their  provisions.  They  relate  to  two  offences  that  are  frequently 
confounded,  but  which  are  here  endeavoured  to  be  distinguished  by 
definitions  and  rules  which  are  minute,  and  it  is  hoped,  will  be  found  to 
be  intelligible  and  precise.  These  offences  are,  the  obtaining  of  property 
by  false  pretences,  and  theft,  properly  so  called.  The  uncertainty  of 
the  English  law  on  this  subject  was  lamented  by  lord  Hale  ;  and  the 
multiplicity  of  decisions,  since  his  time,  have  rather  rendered  it  more 
obscure.  That  great  lawyer  says  :  "  It  is  the  mind  which  maketh  the 
taking  of  another's  goods  to  be  felony  or  a  bare  trespass  only  ;  but 
because  the  variety  of  circumstances  is  so  great,  and  the  complication 
thereof  so  mingled,  that  it  is  impossible  to  prescribe  all  the  circum- 
stances evidencing  a  felonious  intent,  or  the  contrary,  the  same  must 
be  left  to  the  due  and  attentive  consideration  of  the  judges  and  jury  ; 
whence  the  best  rule  is,  in  doubtful  matters,  rather  to  incline  to  acquittal 
than  to  conviction"(a).  These  doubtful  matters  alluded  to  in  his 
lordship's  opinion  might,  it  was  thought,  be  much  diminished  in  number, 
and,  of  course,  the  conviction  of  guilt,  and  the  acquittal  of  innocence 
rendered  more  certain,  by  adopting  precise  definitions,  drawing  practi- 
cal deductions  from  them,  and  elucidating  the  whole  by  examples.  It 
has  been  my  endeavour  to  do  this  ;  with  what  success  can  only  be 

etermmed,  by  a  close  examination  of  the  text.     Simple  theft  being 

jiently  described,  and  the  danger  of  confounding  it  with  other 

raudulent  appropriations  of  property  avoided  ;  the  next  consideration 

the  different  aggravations  of  which  it  is  susceptible.  These  form  the 
subjects  of  the  three  following  sections. 

The  first  of  these  is  theft  by  effraction.     This  differs  from  the  crime 
by  the  name  of  burglary,  by  our  present  law,  in  this,  that  it  is 
1  by  breaking  into  a  house  by  day,  or  by  actually  committing 
theft  therein  without  breaking  ;  whereas  burglary  can  only  be  corn- 
by  a  nocturnal  effraction,  and  is  complete  by  the  intent  of  en- 
Co)  Bale's  P.  C.,  p.  509. 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  195 

tering,  in  which  it  more  resembles  the  offence  which  has  hereinbefore 
been  described  as  house-breaking.  Stealing  by  an  entry,  without  ef- 
fraction,  is  punished  by  a  mitigated  penalty  ;  but  the  crime  and  the 
punishment  are  aggravated  by  the  circumstances  of  actual  violence  to 
any  person  who  may  resist  the  offender,  or  of  preventing  such  resist- 
ance by  threats.  There  is  an  error  of  the  press  in  placing  in  this  sec- 
tion the  two  last  articles,  respecting  wrecked  property.  They  proper- 
ly belong  to  the  section  which  treats  of  the  fraudulent  appropriation  of 
property  found. 

The  next  aggravation  is  that  of  privately  stealing  from  the  person, 
which  I  have  been  induced  to  place  in  a  separate  grade  of  crime,  prin- 
cipally from  the  consideration  that  it  is  one  which  cannot  well  be  com- 
mitted, to  any  extent,  without  a  dexterity  acquired  only  by  long  prac- 
tice and  instruction  ;  and  also  from  the  difficulty  of  guarding  against 
the  depredations  of  its  exercise. 

The  last  aggravated  theft,  which  it  has  been  deemed  proper  to  notice^ 
is  robbery,  which  is  "theft  committed  by  fraudulently  taking  the  pro- 
perty of  another  from  his  person,  or  in  his  presence,  with  his  know- 
ledge and  against  his  will ;  whether  it  be  taken  by  force,  or  delivered, 
or  suffered  to  be  taken  through  fear  of  some  illegal  injury  to  person, 
property,  or  reputation,  that  is  threatened  by  the  robber  or  his  accom- 
plice." 

The  description  of  these  last  two  offences  is  so  nearly  similar  to  those 
contained  in  the  English  law,  as  to  require  no  elucidation  ;  nor  does  any 
seem  necessary  for  that  treated  of  in  the  concluding  section,  namely,  re- 
ceiving property  knowing  it  to  be  stolen.  But,  although  the  English 
law  has  been  made  the  ground-work  of  these  and  other  provisions,  it  is 
not  meant  to  allege  that  the  rules  of  that  jurisprudence  have  been  strictly 
followed,  except  where  they  have  been  found  to  coincide,  as  they  for 
the  most  part  do,  with  those  of  justice. 

The  fourth  chapter  of  this  title  defines  an  offence  of  no  unfrequent 
occurrence  in  England,  and  which,  it  was  thought,  should  be  guarded 
against  here  ;  that  of  attempting  to  obtain  property  or  other  advantage 
by  such  threats,  either  of  injury  to  person,  reputation  or  property,  as 
do  not  amount  to  robbery,  according  to  the  definition  of  that  offence 
contained  in  this  code.  The  offence  chiefly  intended  to  be  guarded 
against  by  this  chapter,  is  that  of  sending  threatening  messages  or  let- 
ters, either  to  obtain  property,  to  procure  service,  or  merely  to  alarm. 

The  last  chapter  of  this  book  contains  a  description  of  offences  which 
it  was  found  impossible  to  bring  within  any  one  division  of  the  code, 
because  it  might  affect  as  well  the  person,  the  reputation,  the  property, 
or  the  profession  or  trade  of  individuals.  To  have  treated  conspiracy 
as  a  separate  offence,  under  each  of  these  titles,  would  but  have  led  to 
a  tiresome  and  useless  repetition.  It  was,  therefore, 'determined  to  an- 
nex it  to  the  whole  as  a  concluding  chapter.  It  is  there  defined  as  an 
agreement,  between  two  or  more  persons,  to  do  any  unlawful  act,  or  any 
of  those  acts  designated  in  the  law,  which  become  by  the  combination, 
injurious  to  others.  Those  are  further  explained  to  be,  agreements  to 
commit  offences  ;  to  accuse  and  prosecute  falsely  ;  to  do  certain  enu- 
merated injuries  that  are  not  offences  when  done  by  an  individual. 
The  object  of  the  first  two  of  these  combinations  needs  no  explanation. 
The  offence  is  the  act  of  combining  to  do  them.  If  the  completion  of 
the  design  were  made  necessary  to  constitute  the  offence,  the  evil  would, 


196  INTRODUCTORY  UEl'OHT  TO 

in  many  cases,  be  without  remedy.  The  agreement  between  two  or 
more  persons  is  an  act  which  shows  a  settled  design  ;  and  is  clearly 
distinguishable  from  an  intent  formed  in  the  mind  of  an  individual,  not 
only  because  of  its  being  more  susceptible  of  proof,  but  also  from  the 
circumstance,  that,  if  the  original  design  of  the  individual  could  be 
made  to  appear,  a  change  of  purpose  might  have  taken  place,  of  which 
no  evidence  could  be  given  ;  whereas,  a  combination  between  two  or 
more  must  have  been  communicated  by  some  outward  acts,  and  the  re- 
nunciation of  the  project  evidenced  in  the  same  way  ;  both  being  sus- 
ceptible of  proof.  A  combination  too,  although  discovered  before  ex- 
ecution, is  injurious,  because  it  excites  alarm  in  the  person  who  was 
the  object  of  it,  and  a  sense  of  danger  and  suspicion  in  the  whole  com- 
munity, which  the  most  determined  but  secret  intention  of  an  individual 
could  never  do.  The  danger  is  also  increased  by  the  character  of  the 
injury  to  be  effected  by  these  combinations  ;  they  being,  for  the  most 
part,  such  as  individual  malignity  alone  could  not  accomplish.  For 
these  reasons  agreements  to  do  certain  acts,  although  never  carried  into 
execution,  are,  in  this  and  other  parts  of  the  code,  made  punishable  as 
offences. 

The  third  head  under  which  conspiracy  is  made  an  offence,  although 
the  act  agreed  to  be  done  would  not  be  an  offence,  without  such  previ- 
ous agreement,  requires  more  elucidation.  Its  object  is  to  prevent 
combinations  injurious  to  trade,  by  raising  or  depressing  wages.  This 
subject  is  one  that  has  engaged  some  attention  lately  in  England,  where 
the  laws,  as  they  now  stand,  prohibit  combinations  among  workmen  for 
raising  their  wages,  but  do  not  consider,  as  an  offence,  a  similar  agree- 
ment among  employers  to  lower  them.  To  impose  as  few  restraints  as 
possible  upon  the  liberty  of  action,  is  undoubtedly  a  sound  rule,  in  that 
part  of  legislation  which  may  operate  upon  political  economy  ;  and 
therefore  it  might,  on  a  superficial  view,  seem  that  any  regulation,  as  to 
the  conduct  of  those  concerned  in  manufactures  and  trade,  in  relation 
to  the  price  they  may  choose  to  put  on  their  own  labour,  or  give  for 
that  of  others,  would  be  contrary  to  this  rule.  But  the  law  interposes 
here,  not  to  impose  a  restriction,  but  to  prevent  one  from  being  imposed 
by  an  incompetent  authority.  Every  labourer  has  a  right  to  refuse  his 
services,  unless  the  price  which  he  appreciates  them  at,  be  that  price 
ever  so  extravagant,  be  paid.  Every  employer  has  the  right  to  refuse 
the  same  service,  unless  the  price  be  reduced  to  the  sum  he  thinks  it 
worth.  But  whenever  an  agreement  takes  place  among  the  class  of  em- 
ployers or  labourers,  for  regulating  these  prices,  then  such  an  agreement 
becomes,  to  the  extent  to  which  it  can  be  enforced,  a  law  operating 
for  the  reduction  or  advance  of  wages,  and  a  law  made  by  parties  in- 
terested in  the  imposition  of  it;  and,  therefore,  necessarily  unjust ;  and, 
if  permitted,  would  be,  in  effect,  a  usurpation  of  the  powers  of  legisla- 
lon,  and  an  unwise  and  oppressive  exercise  of  them  :  for,  although  an 
agreement  be  only  a  law  to  those  who  are  parties  to  it,  yet,  when  the 
st  of  it  is  to  affect  the  interest  of  others  in  a  way  in  which  they 
would  not  be  effected  but  for  such  agreement,  it  is  in  its  operation,  al- 
though it  may  not  be  in  its  form,  a  law  operating,  though  not  binding, 
upon  those  who  are  not  parties  to,  but  objects  of  the  agreement.  Sup- 
e  a  law  instead  of  an  agreement,  and  that  a  statute  should  render  it 
lawful  in  any  employer  to  give  more  than  a  certain  price  to  his  la- 
bourers, the  effect  upon  this  last  class  would  be  precisely  the  same;  yet 


THE  CODE  OF  CRIMES  AND  PUNISHMENTS.  197 

such  a  law  would  be  acknowledged  to  be  one  at  variance  wit,h  the  prin- 
ciples of  free  exertion,  free  use  of  capital,  and  free  competition.  The 
agreement,  therefore,  is  hostile  to  these  principles,  and  ought  not  to  be 
permitted.  For  these  reasons  the  code,  in  conformity  with  the  English 
law,  imposes  a  penalty  on  any  two  or  more  persons  conspiring  to  raise 
the  price  of  wages;  but  it  adds  to  that  provision,  one  which  is  wanting 
in  the  English  statute,  imposing  a  similar  penalty  on  a  combination  be- 
tween employers  to  reduce  the  price  of  labour.  Without  this,  the  law 
would  be  partial  and  unjust  in  its  operation.  Employers  in  any  one 
branch  of  manufacture,  being,  comparatively  to  the  operators,  few  in 
number,  an  agreement  between  them  is  more  easily  made;  more  readily 
enforced  among  themselves  ;  and,  while  their  wealth  enables  them  to 
wait  the  effect  of  their  combination,  the  poverty  of  those  against  whom 
it  is  directed,  obliges  them  soon  to  yield  to  the  dictates  of  their  em- 
ployers, be  they  ever  so  oppressive.  This  inequality  in  the  effects  of 
this  offence,  between  these  two  classes  of  men  upon  whom  it  recipro- 
cally operates,  requires  a  correspondent  difference  in  the  punishment ; 
and  it  is,  therefore,  directed  that  imprisonment  shall  always  be  part  of 
the  sentence  against  employers  for  a  combination  to  lower  the  rate  of 
wages,  for  this  cogent  reason,  that  the  highest  limit  which  could  be 
given  to  the  fine  upon  the  labourer,  would  be  no  punishment  to  his 
wealthy  employer,  who  should  be  guilty  of  the  same  offence.  It  is  also 
provided,  that  an  agreement  to  require  a  longer  time  to  labour  in  the 
day,  or  to  decrease  the  number  of  working  hours,  without  altering  the 
price,  shall  be  considered  as  a  combination  to  lower  or  raise  the  rate  of 
wages;  and  if  the  agreement  be  to  inflict  any  injury  on  those  who  will 
not  become  parties  to  it,  the  punishment  is  to  be  doubled.  Other  arti- 
cles are  contained  in  the  text,  calculated  to  explain,  and  carry  into  effect 
those  which  have  been  commented  on,  and  to  guard  against  abuses  in 
enforcing  them. 

The  rapid  view  I  have  thought  it  necessary  to  take  of  this  important 
branch  of  the  work  committed  to  me,  is  now  finished.  Some  comments 
and  arguments  that,  perhaps,  ought  to  have  formed  a  part  of  it,  have  been 
doubtless  omitted.  They  will  readily  be  supplied  by  the  intelligence  of 
the  body  to  whom  it  is  submitted;  but  I  much  fear  that  the  reproach  of 
having  unreasonably  trespassed  on  their  attention,  may  have  been  more 
justly  incurred.  Yet  nothing  has  been  advanced  which  was  not  thought 
necessary  to  the  elucidation  of  the  great  variety  of  provisions  contained 
in  this  code,  and  much  was  designedly  left  to  be  supplied  by  reflection. 


INTRODUCTORY   REPORT 


THE   CODE   OF   PROCEDURE. 


I  HAVE  now  the  honour  to  present  the  second  of  those  codes  which 
your  law  has  directed  me  to  prepare.  The  legislature,  which  passed 
that  law,  were  aware  that  no  system  would  be  complete  without  a  Code 
of  Procedure.  Expense,  delay  or  uncertainty,  in  applying  the  best 
laws  for  the  prohibition  of  offences,  would  render  those  laws  useless  or 
oppressive.  Therefore,  this  division  has  been  considered  of  equal  im- 
portance with  any  of  the  others,  but  more  extensive  in  its  operation 
than  either  of  them.  The  party  committing  the  offence  and  the  indi- 
vidual injured,  rarely  the  whole  community,  are  the  only  persons  im- 
mediately affected  by  the  commission  and  punishment  of  a  crime.  But 
in  the  measures  prescribed  for  preventing  or  prosecuting  them,  every 
citizen,  however  unconnected  with  the  offence,  may  find  himself  in- 
volved. As  a  judge,  a  magistrate,  a  civil  or  military  officer,  or  even  a 
private  citizen,  every  one  is  liable  to  become  an  active  party  in  the  task 
of  applying  the  law,  after  a  breach  of  its  provisions  has  taken  place,  in 
preventing  the  commission  of  a  crime,  or  in  arresting  the  progress  of 
such  as  are  continuous  in  their  nature.  The  rules  which  direct  us  in 
what  manner,  under  what  circumstances,  and  to  what  extent  we  may 
use  force  to  protect  our  own  persons  and  property,  or  those  of  another, 
against  unlawful  violence,  also  belong  to  this  division  of  the  law  ;  so 
that  its  provisions  are  more  required  for  daily  use  than  those  of  any 
other  part  of  the  system  ;  and  it  may,  therefore,  without  impropriety, 
be  said,  that  a  society,  however  excellent  may  be  its  laws  for  defining 
crimes  and  affixing  to  them  proper  punishments,  will,  if  the  means  of 
carrying  them  into  effect  are  expensive,  dilatory  and  uncertain,  be  worse 
governed  than  the  community  in  which  the  Code  of  Crimes  and  Pun- 
ishments is  faulty,  but  where  the  rules  for  executing  it,  and  for  pre- 
venting and  arresting  the  progress  of  offences,  are  easy,  cheap,  expe- 
ditious and  just.  More  attention,  therefore,  has  been  paid  to  this 
branch  of  the  subject  than  the  little  importance,  commonly  attached 
to  it,  would  seem  to  warrant.  None  of  the  codes  which  have  come 
within  my  knowledge,  either  ancient  or  modern,  except  the  French, 
contain  any  separate  body  of  laws  directing  the  mode  of  procedure,  either 
for  arrest,  trial,  punishment  or  prevention.  Our  laws,  as  we  have  st  m, 
are  wofully  defective  in  this  particular  ;  giving  for  acts,  which,  by  some 
laws,  are  declared  to  be  offences,  no  rule  whatever  ;  and  for  the  others, 


200  INTRODUCTORY  REPORT  TO 

referring  us  to  the  English  common  law,  unmodified  by  statute.  The 
necessity,  therefore,  of  a  Code  of  Procedure  was  much  more  urgent 
than  that  which  existed  for  a  Code  of  Crimes  and  Punishments.  The 
system  adopted  in  the  prosecution  of  certain  offences,  by  the  legis- 
lature, and  in  that  of  others  by  the  courts,  with  the  modifications 
introduced  by  our  statutes,  is  freed  from  many  of  the  abuses  and  op- 
pressions to  which  criminal  prosecutions  in  England  are  liable  :  a 
public  officer  being  appointed  to  prosecute,  the  individual  who  has  suf- 
fered by  the  crime,  is  not,  in  addition  to  his  loss,  put  to  the  expense  of 
bringing  the  offender  to  justice:  jurors  being  taken  by  lot,  no  improper 
influence  can  be  exerted  in  the  arrangement  of  the  panel :  the  assistance 
of  counsel  being  secured  in  all  cases,  the  defendant,  no  matter  of  what 
he  is  accused,  is  enabled  to  make  his  full  defence:  and  the  intervention 
of  a  grand  jury  being  rendered  necessary  in  every  case  of  a  grave  ac- 
cusation, the  individual  is  not  exposed  to  vexatious  prosecutions  that 
can  materially  affect  him.  Standing  mute  is  considered  as  a  denial,  not 
a  confession.  Appeals  of  murder,  trials  by  battle,  and  many  other  op- 
pressive and  absurd  parts  of  the  ancient  common  law,  have  never  been 
used  in  our  state.  Yet,  with  all  these  comparative  advantages,  our  prac- 
tice requires  reform. 

First,  because  the  exemption  from  several  of  these  and  other  incon- 
veniences is,  in  many  instances,  not  secured  by  law ;  and,  in  others,  is 
given  to  us  by  the  construction  of  the  court,  contrary  to  law.  In  the 
Introductory  Report  to  the  System  of  Penal  Law,  it  has  been  shown, 
that  where  the  common  law  of  England  is  prescribed  as  the  law  of  our 
procedure,  it  is  spoken  of  without  any  of  the  amendments  introduced  by 
the  English  statutes;  and  that  in  all  acts,  which  are  created  offences 
since  1805,  no  mode  of  procedure  whatever  has  been  provided. 

Secondly,  because,  if  the  present  mode  of  procedure  were  sanctioned 
by  law,  it  would  require  alterations  and  additions  in  the  several  par- 
ticulars in  which  they  have  been  introduced  in  the  code,  some  of 
which  will  be  hereinafter  pointed  out,  with  the  reasons  for  introducing 
them. 

Thirdly,  because  of  the  difficulty,  expense  and  inconvenience,  before 
enlarged  upon,  of  referring  to  foreign  laws,  written  in  a  language 
which  a  majority  of  our  citizens  do  not  understand. 

Fourthly,  because  of  the  uncertainty  inseparable  from  laws  depending 
for  their  authority  upon  judicial  decisions. 

Fifthly,  as  incident  to  the  two  last,  because  of  the  ease,  convenience, 
and  indeed  necessity,  for  all  those  who  wish  to  perform  their  duty  as 
good  citizens,  of  finding  in  one  book,  couched  in  language  easily  under- 
stood, and  arranged  in  a  method  making  them  easily  accessible  to  all ; 
the  rules  necessary  to  direct  them  in  all  the  cases  in  which  self-defence, 
the  prevention  of  crime,  the  arrest  of  offenders,  and  their  high  duties  as 
magistrates  or  jurors. 

The  Code  of  Procedure  now  offered,  sets  out,  as  that  of  Crimes  and 
Punishments  does,  with  an  introductory  chapter,  containing  a  brief  ex- 
position of  the  objects  which  it  is  intended  to  effect.  To  this  enuncia- 
tion I  have  heard  no  objection  stated,  and  its  utility  has  been  acknow- 
ledged by  many  of  those  statesmen  and  jurists  to  whom  the  pi  an  has 
been  submitted  ;  it  has,  therefore,  been  retained. 

The  first  of  these  objects,  in  order,  as  well  as  in  importance,  is  the 


THE  CODE  OF  PROCEDURE.  201 

prevention  of  intended  offences.  This  may  be  effected  by  personal  re- 
sistance. The  cases  in  which  resistance  is  lawful,  th<S  degree  to  which 
it  may  be  carried,  under  what  circumstances  the  interference  of  private 
individuals  is  permitted,  when  the  sanction  of  a  magistrate  is  required, 
his  right  to  command  the  assistance  of  others^  and  when  he  may  require 
the  aid  of  military  force,  together  with  the  formalities  required  for  ef- 
fecting these  objects,  are  set  forth  in  the  first  book. 

According  to  our  present  jurisprudence,  there  is  either  no  written 
law  for  our  direction  on  these  points,  which  it  is  so  much  our  interest, 
as  parties,  magistrates  or  citizens,  to  know,  or  it  is  so  dispersed  in  dif- 
ferent books,  so  uncertain  when  it  is  found,  and  of  such  doubtful  authori- 
ty, as  to  render  it  unsafe  for  any  one  to  trust  to  his  own  opinion,  or 
in  truth,  in  many  cases,  to  that  of  others.  Yet  the  occasions  which 
call  for  the  exercise  of  these  rights  and  duties,  are  those  of  all  others  in 
which  there  is  least  time  to  reflect,  or  opportunity  to  consult.  For  this 
reason,  every  man  ought  to  be  provided  with  the  means  of  acquiring  so 
much  knowledge  on  these  points  as  is  necessary  for  daily  use.  With- 
out it,  he  will  neither  know  how  to  protect  himself,  or  pay  these  du- 
ties, which  he  may  be  urgently  called  on  to  perform  in  the  protection 
of  others.  He  must  either  act  at  his  peril,  submit  to  injuries  which  he 
has  a  right  to  repel,  or  depend  on  the  purchased  opinions,  and  some- 
times the  'forked  counsel,'  of  men  who  disgrace  an  honourable  pro- 
fession. 

The  first  dictates  of  common  sense  inform  an  individual  that  he  has 
a  right  to  defend  himself.  The  laws  of  society  impose  the  obligation 
upon  him  of  defending  others,  and  of  enforcing  the  execution  of  the 
laws.  Magistrates  and  executive  officers  are  required  by  official  duty 
to  prevent  or  arrest  violence  and  depredation  ;  and  the  military  force 
is  told,  that  it  must  assist  the  civil  power  when  legally  called  on.  All 
this  the  general  language  of  the  law  gives  the  citizen  to  understand. 
But  in  our  state  it  has  never  deigned  to  make  such  a  record  of  its  will 
as  may  enable  any  one,  desirous  of  obeying,  to  discover  boundaries  be- 
tween legal  acts  and  transgression  in  the  performance  of  this  duty.  A 
correct  moral  sense,  a  determination  to  injure  no  one  may,  with  re- 
spect to  a  man's  own  actions,  render  a  knowledge  of  positive  law  less 
necessary  ;  but  no  prudence  can  foresee  or  prevent  the  necessity  of  self, 
defence,  arid  every  man  may  be  called  on  in  some  capacity  to  protect 
others  or  to  defend  the  peace  of  the  state  ;  and  yet  with  every  inclina- 
tion to  perform  the  duties  of  a  good  citizen  on  these  occasions,  he  is  con- 
tinually arrested  by  the  unavoidable  doubts  which  must  arise  as  to  the 
propriety  of  personal  exertion  in  the  particular  case,  or  the  extent  to 
which  he  may  carry  it.  On  the  vital  subject  of  calling  in  the  military 
to  the  aid  of  the  civil  powers,  there  is  absolutely  no  provision;  and  there 
is  no  power  liable  to  a  more  dangerous  abuse.  Sometimes  necessary  for 
the  defence  of  the  constitution  and  the  enforcement  of  the  laws,  it  is,  at 
the  same  time,  the  weapon  best  adapted  for  their  subversion.  The  cir- 
cumstances, therefore,  in  which  its  use  is  permitted,  and  the  mode  of  its 
exercise,  ought  to  be  impressed  on  the  mind  of  every  citizen  to  prevent 
his  refusing  his  aid  when  it  is  legally  required  on  the  one  hand,  and  of 
his  being  made  the  instrument  of  his  own  oppression  on  the  other.  It 
is  attempted,  in  the  first  book  of  the  code  now  presented,  to  provide  a 
remedy  for  these  evils. 

The  first  title  treats  of  the  modes  of  preventing  apprehended  offences, 
2  A 


202  INTRODUCTORY  REPORT  TO 

which  it  is  declared  may  be  either  by  resistance  or  by  the  intervention 
of  the  officers  of  justice. 

The  first  chapter,  by  reference  to  the  corresponding  parts  of  the 
Penal  Code,  lays  down  the  rides  by  which  the  resistance  of  the  party 
injured,  to  offences  affecting  his  person  or  property,  is  regulated.  The 
second  chapter  details  the  cases  in  which  third  persons  may  interfere, 
without  the  sanction  of  the  magistrate,  and  those  in  which  such  inter- 
ference is  not  only  a  right,  but  a  legal  as  well  as  a  moral  duty.  In  this 
chapter  are  contained  two  provisions  which  require  particular  notice. 
By  the  first  an  honorary  reward  is  held  out  as  an  inducement  for  extra- 
ordinary exertion  in  the  prevention  of  crime,  or  in  bringing  an  offender 
to  justice.  This  consists  in  a  certificate  of  the  act,  recorded  on  the 
minutes  of  the  court,  and  transmitted  to  the  appointing  power  to  serve 
as  a  recommendation  for  any  office  in  which  the  qualities  manifested  by 
itare  required;  to  this,  in  such  cases  as  the  governor  and  judges  think 
worthy  of  the  distinction,  a  piece  of  plate,  of  limited  value,  may  be 
added.  A  very  high  authority(«)  tells  us,  that  recompense,  in  a  des- 
potism, must,  to  accord  with  what  he  terms  the  principle  of  the  govern- 
ment, be  of  a  pecuniary  nature,  and  honorary  in  a  monarchy;  but  that  in 
a  republic,  founded  on  virtue,  and  which  he  seems  to  think  ought  to  be 
its  own  reward,  it  ought  not  to  be  allowed  at  all.  He  admits,  that  in 
a  monarchy  the  honour  is  and  ought  to  be  accompanied  by  fortune;  but 
why  his  doctrine  should  interdict  to  republics  the  agency  of  both  honour 
and  profit,  upon  the  human  mind  for  the  public  good,  it  is  not  easy  to 
imagine.  If  a  republic  could  be  composed  of  men  willing  to  devote 
their  services  to  their  country  from  a  patriotic  desire  to  see  it  prosper, 
without  the  admixture  of  any  other  motive,  rewards  and  distinction 
would  be  unnecessary;  but  such  pure  attachment  to  the  public  good  has 
never  been  known  to  pervade  any  community;  and  the  reward  of  public 
esteem,  and  the  distinction  to  which  it  leads,  must  ever  be  so  closely 
connected  in  the  mind  with  the  most  elevated  and  disinterested  patriot- 
ism, as  to  make  it  extremely  difficult  to  pronounce  the  latter  motive  to 
have  been  that  which  predominated  in  any  given  exertion  for  the  public 
service.  All  that  a  wise  legislator  can  be  expected  to  do,  is  to  present 
such  motives  as  will  most  effectually  attain  the  end,  which,  in  the  case 
under  consideration,  is  extraordinary  exertion  for  the  due  execution  of 
the  laws.  But  we  must  take  care  that  these  means  are  not  such  as  will 
produce  a  greater  evil  than  the  breach  of  the  laws  which  they  are  em- 
ployed to  enforce.  Such  I  confess  would  be  a  corruption  of  the  morals 
of  the  people,  or  the  introduction  of  any  motive  that  would  destroy  the 
fundamental  principles  of  their  government. 

Let  us  test  the  system  of  rewards  for  extraordinary  services  by  this 
rule.  There  can  be  no  greater  incentive  to  voluntary  action  than  the 
hope  of  public  applause,  and  when  joined  to  pecuniary  recompense 
and  undiminished  by  any  consciousness  of  wrong,  it  comprises  all, 
perhaps,  that,  independent  of  religious  motives,  can  most  forcibly 
act  on  the  human  mind  ;  it  is,  therefore,  well  calculated  to  produce  the 
effect.  For  let  it  be  remarked,  that  it  is  proposed  solely  to  operate  in 
cases  where  the  fears  of  punishment  cannot  be  employed  ;  no  man  can 
justly  incur  a  penalty  for  not  doing  more  than  the  law  requires  ;  but 
the  public  good  may,  at  times,  be  essentially  promoted  by  such  acts. 

(a)  Montesquieu,  Espns  des  Lois,  1.  5,  c.  18. 


THE  CODE  OF  PROCEDURE.  203 

Some  motive,  therefore,  should  be  held  out  for  their   performance. 
Some  passion  must  be  enlisted  :  it  cannot,  as  we  have  seen,  be  fear  : 
it  must   then,  as  the  only  alternative,  be  hope — hope  of  some  enjoy- 
ment.    Of  what  nature  shall  that  enjoyment  be  ?  With  consciousness 
of  well-doing,  pure  love  of  country  unconnected  with   any  personal 
credit  or  other  advantage,  and  with  public  esteem  without  any  substan- 
tial testimonials  of  its  existence  ;  legislation  can  have  nothing  to  do. 
The  first  must  exist  in  every  uneorrupted  mind,   whatever  may    be 
the  operation  of  the  Jaws  ;  the  second  is  equally  independent  of  ex- 
ternal causes,    and  the  third  must  in  all  societies,  in  a  greater  or  less  de- 
gree, attend  the  performance  of  actions  for  the  public  good.     But  these 
motives  are  not  sufficiently  general  or  strong  to  justify  us  in  relying 
solely  on  their  operation.     Laws  must  be  made  for  men  as  they  are, 
not  such  as  an  exalted  theory  of  imagined  perfection  suppose  them  to 
be  ;  and  although  in  every  community  some  may  be  found  capable  of 
doing  extraordinary  acts  of  public  service,   without  even  the  hope  of 
reaping  the  reward  of  the  esteem  of  those  for  whose  benefit  they  were 
performed  ;  yet  the  bulk  of  mankind   require  something  more.     The 
consciousness  of  a  good  action,  the  knowledge  of  the  benefit  it  has 
conferred  on  the  country,  and  even  the  persuasion  that  it  is  known  and 
silently  approved,  is  not  sufficient.     Good  policy,  it  is  thought,  as  well 
as  justice,  requires  that  this  esteem  should  be  expressed  by  some  ex- 
ternal mark  ;  and  that  pecuniary  recompense,  the  representative  of  so 
many  other  enjoyments,  should,  in  particular  cases,  be  superadded  as 
a  testimonial  of  gratitude.      That  the  hope  of  these  additional  rewards 
would  strengthen  the  motive  to  action  there  can  be  no  doubt ;  and  if 
they  do  not  counteract  the  more  refined  and  disinterested  impulses, 
which  have  the  same  tendency,   they  may  safely  be  employed;  for 
although  laws  cannot  direct  the  operations  of  the  mind,  yet  those  laws 
may  promote  or  discourage  them,  by  offering  other  co-operating   or 
counteracting  inducements  to  produce  or  defeat  the  end  proposed  ;  and 
the  inquiry  is,  which  of  these  effects  will  be  produced  by  the  employ- 
ment of  the  rewards  proposed  in  this  part  of  the  code  ?     Those  held 
out,  for  danger  incurred,  diligence  used,  or  skill  displayed  in  any  ex- 
traordinary degree,   in  preventing  an  offence,  or  bringing  in  offenders 
to  justice,  are  addressed  exclusively  to  love  of  distinction,  and  of  that 
distinction   only   which  is  founded  on  public  gratitude  and  esteem. 
While  this  passion  can  be  directed  to  the  support  of  the  government, 
the  due  execution  of  the  laws  and  the  defence  of  private  right,  it  sup- 
ports that  which  is  assumed  to  be  the  principle  of  republican  govern- 
ments :  it  produces  the  same  effect,  excites  to  the  same  acts,  and  cannot 
be  distingushed  in  its  operation  from  the  most  exalted  public  virtue. 
But  the  rewards  held  out  by  the  code,  for  extraordinary  services,  are 
precisely  of  this  nature  :  a  certificate  of  the  fact,   recorded,  published, 
and  transmitted  to  the  appointing  power,  to  serve  as  an  authentic  re- 
commendation for  offices  requiring  the  exercise  of  the  qualities  display- 
ed.    In  ordinary  cases,  this  is  given  by  the  court ;  in  those  which  evince 
higher  merit,  the  concurrence  of  the  governor,  entitles  the  party  to 
the  additional  testimonial  of  a  goblet  or  vase  of  little  pecuniary  intrinsic 
value  ;  but  the  inscription,  in  which  the  meritorious  act  is  recorded,  plac- 
ed continually  before  his  eyes  and  those  of  his  family,  raises  him  in  his 
own  esteem,  increases  the  reverence  of  his  domestic  circle,  and  gives 
him  a  limited  local  celebrity,  which  not  only  adds  to  his  own  happiness, 


* 


204  INTRODUCTORY  REPORT  TO 

but   within  a  certain  sphere,  operates  as  an  incentive  to  promote  that 
of  the  public. 

Honours  conferred  for  brilliant  achievements  in  war,  or  eminent 
services  in  council,  may  in  a  republic  be  said,  perhaps  with  some  pro- 
priety, to  be  liable  to  objection  ;  not  because  they  are  wrong  in  them- 
selves, but  because,  by  exciting  the  admiration  of  the  people  to  a  high 
degree  and  attaching  it  to  one  man,  they  give  him  an  undue  influence 
that  may  be  sometimes  used  to  the  destruction  of  liberty.  But  no  such 
consequence  can  be  apprehended  from  the  unpretending  limited  popu- 
larity and  distinction  given  by  the  means  pointed  out  by  the  code.  On 
the  contrary,  beneficial  political  effects  may  be  expected  by  bringing 
within  the  reach  of  those  in  the  humblest  station  those  testimonials  of 
eminent  merit,  and  by  associating  public  favour  in  their  minds  with 
the  execution  of  the  laws.  He  who  has  risked  his  life  in  an  unequal 
encounter  with  ruffians,  either  to  protect  another  from  their  vio- 
lence, or  to  secure  them  for  the  purpose  of  punishment,  every  one  will 
allow  deserves  public  esteem  ;  but  it  can  neither  be  permanent  nor 
extensive,  and,  of  course,  will  lose  much  of  its  value,  if  it  is  confined 
to  the  narrow  circle  of  those  who  happen  to  have  witnessed,  or  to 
have  been  benefited  by  its  exertion.  It  is  soon  forgotten,  it  loses  most 
of  its  effect  as  an  example,  and  it  is  buried  in  the  same  oblivion  with 
the  every-day  transactions  which  have  nothing  to  impress  them  on  the 
memory. 

Paulum  scpulue  distal  inertia 
Celata  virtus. 

Let  the  little  hero  of  the  hamlet  have  his  celebrity  for  supporting 
the  laws,  and  you  will  have  fewer  great  heroes  who  seek  it  by  breaking 
them  ;  and  let  it  be  remembered,  that  the  recorded  certificate  and  the 
engraved  goblet  are  not  given  to  reward  the  act,  but  to  keep  it  in 
memory.  The  only  reward  is  the  public  consideration,  which  will  not 
be  measured  by  the  worth  of  these  testimonials,  but  by  the  merit  and 
utility  of  the  service  rendered. 

The  provisions  of  the  next  succeeding  articles  are  founded  on  other 
principles,  and  I  confess  are  liable  to  stronger  objections  ;  they  give 
a  pecuniary  reward  to  him  who  denounces  the  commission  of  certain 
crimes. 

1.  In  order  to  bring  offenders  to  justice,  two  distinct  duties  are  to  be 
performed.  The  public  officer  must  prosecute  ;  but  he  cannot  do  this 
until  the  private  individual,  who  has  suffered  by  the  offence,  or  knows 
that  it  has  been  committed,  shall  accuse.  In  most  cases  we  may  safely 
rely  for  the  performance  of  this  last  mentioned  duty  upon  the  feeling 
of  resentment  for  the  injury,  or  upon  a  sense  of  public  justice.  There 
are  cases,  however,  in  which  neither  of  these  motives  exist,  or  are  not 
sufficiently  strong  to  produce  the  desired  effect,  and  in  which,  to  secure 
the  execution  of  the  laws,  other  inducements  must  be  brought  to  bear. 
Punishments  and  rewards  are  those  only,  which  the  legislator  has  at 
his  disposal.  The  first,  it  was  thought,  ought  not  on  this  occasion  to 
be  used,  for  the  general  reason,  that  the  denunciation  of  penalties  ought 
not  to  be  multiplied  without  evident  necessity  ;  and  also,  because  it 
was  thought  proper  to  make  a  sensible  distinction  between  the  omiss- 
ion to  give  notice  of  an  intended  crime,  so  as  to  prevent  its  commission 
(which  is  made  punishable  by  the  code)  and  the  failure  to  denounce  a 
crime  already  committed.  As  the  punishment  for  the  first  offence  was 


THE  CODE  OF  PROCEDURE.  205 

necessarily  placed  very  low  on  the  scale,  (he  other,  must  either  have 
been  rated  so  low  as  scarcely  to  deserve  the  name  of  punishment,  or 
else  so  high  as  to  run  the  risk  of  confounding  two  acts  somewhat  similar 
in  their  nature,  but  very  different  in  their  injurious  effects.     There  was 
moreover  another  reason  for  not  employing  the  sanction  of  punishment 
on  this  occasion.     It  is  a  wise  maxim  in  legislation,  never  to  enact 
laws  that  the  prejudices  of  the  people  or  other  circumstances  will  not 
allow  you  to  enforce.     Oppressive  laws  have  in  most  countries,  and 
from  the  remotest  antiquity,  caused  those  by  whom  they  were  governed 
to  array  themselves  against  their  execution  ;  and  whenever  any  one  of 
their  own  number  lent  his  voluntary  aid  in  enforcing  them,  to  consider 
him  as  a  betrayer  of  their  common  interest.     For  which  reason  a  degree 
of  infamy  became  attached  to  the  name  and  office  of  an  informer,  which 
has  extended  itself  in  a  greater  or  less  degree  to  those  who  voluntarily 
offer  evidence  of  the  infraction  of  the  laws,  even  in  countries  where 
they  are  neither  oppressive  nor  unjust.     To  impose  a  penalty,  therefore, 
on  those  who,  guilty  of  no  crime  themselves,  should  shrink  from  taking 
upon  themselves  the  task  of  accusers,  would  seem  unjust  even  if  the 
penalty  be  enforced,  which,  in  the  common  course  of  things,  would 
rarely  happen.     First,  because  it  is  scarcely  ever  susceptible  of  proof. 
If  I  have  witnessed  the  commission  of  the  crime  and  do  not  inform, 
who  is  to  accuse  me  ?  .  Not  the  offender,  surely.     Not  the  injured 
party  :  for,  if  he  be  alive  and  desire  the  prosecution,  he  is  the  proper 
accuser.     Not  another  witness  ;  for  he  is  in  the  same  predicament  with 
myself  if  he  omit  to  denounce  it,  and  if  he  do  not,  then  his  information 
dispenses  with  the  necessity  for  mine.     Besides,  while  the  prejudice 
against  the  character  of  an  informer  exists,  it  will  attach  with  tenfold 
force  to  him  who  should  assume  that  office,  in  order  to  punish  another 
for  refusing  to  incur  the  odium  that  he  has  voluntarily  undertaken. 

2.  Secondly,  if  that  difficulty  be  surmounted  and  a  prosecutor  be  found, 
jurors  will  not  easily  be  persuaded  to  convict ;  and  when  they  do, 
public  prejudice  will  operate  upon  the  pardoning  power  to  interfere. 
Again — suppose  the  person  to  whom  I  may  have  confessed  that  I  was 
the  unwilling  witness  of  a  crime  of  which  I  refused  to  become  the 
delator,  should  himself  omit  to  become  my  accuser,  the  law  will  not  be 
executed.  Will  you  enact  penalty  for  him  also,  and  another  for  the 
one  who  omits  to  accuse  him,  and  so  in  endless  succession?  No,  you 
must  stop  somewhere,  and  rely  on  a  sense  of  duty  or  some  other  motive 
to  procure  the  necessary  information.  This  once  granted,  it  is  evident 
that  this  resting  place  is  at  the  first  link  in  the  chain,  and  that  you  will 
more  probably  obtain  information  against  the  original  offender  than 
against  those  who  have  not  denounced  him.  The  fear  of  punishment, 
then,  does  not  seem  to  be  the  best  means  we  can  employ  on  this  occa- 
sion. There  remains  the  hope  of  reward.  We  have  seen  that  the 
prejudice  against  informers  originated  in  the  injustice  and  oppressive 
nature  of  the  laws,  which  forced  upon  the  people  the  conviction  that 
their  interest  and  that  of  those  by  whom  they  were  governed,  were 
totally  distinct.  But  when  the  laws  are  evidently  made  for  the  benefit 
of  the  people,  much  more  when  they  themselves  make  the  laws,  this 
prejudice  ought  not  to  exist ;  yet  such  is  the  force  of  habits,  of  thinking, 
and  the  association  of  ideas  to  particular  terms,  that  although  the  reason 
in  a  great  measure  ceases  to  exist,  although  the  reform  of  our  laws  will 
take  it  entirely  away,  yet  the  effect  remains,  and  we  can  only  hope  to 


;>06  INTRODUCTORY  REPORT  TO 

see  it  entirely  destroyed  by  the  operation  of  time  and  of  wise  legisla- 
tion :  it  is  in  vain  to  attempt  to  eradicate  it  by  penalties.  The  first 
step  is  the  enactment  of  good  laws,  and  convincing  the  people,  by 
making  them  intelligible  as  well  as  good,  that  they  are  so.  This  will 
Jead  them,  by  degrees,  to  the  conviction  that  there  can  be  no  dishonour 
attached  to  any  legal  act. by  which  the  public  good  is  promoted.  A 
worthy  citizen  will  then  consider  it  no  more  disgrace  to  inform  or 
prosecute  any  infringement  of  the  laws  by  public  offences,  than  he  now 
does  to  complain  of  injury  to  his  own  person  or  property.  No  ministry 
of  the  law  will  then  be  deemed  degrading ;  and  from  the  bailiff  who 
arrests,  to  the  judge  who  sentences  the  offender,  the  warden  who 
superintends  his  labour,  and  the  divine  who  conducts  him  to  reforma- 
tion, all  will,  in  different  degrees,  be  considered  as  joint  labourers  in 
the  same  great  and  honourable  work.  If  your  laws  for  regulating 
arrests  were  just  and  well  understood,  the  petty  oppression  of  the 
constable  would  cease,  and  his  office  would  become  respectable.  Where 
the  interior  of  prisons  in  the  United  States  have  been  thrown  open  to 
public  view,  and  they  have  ceased  to  become  the  scenes  of  vice,  filth, 
and  oppression,  the  keepers  have  risen  to  the  rank  in  society  to  which 
their  important  duties  entitle  them.  Men  of  respectability  and  talents 
are  employed  as  wardens  of  your  penitentiaries — without  repugnance 
they  become  the  executioners  of  the  sentence  of  your  courts  against 
criminals,  because  the  laws  which  condemn  them  are  just — because  the 
severity  of  the  punishment  does  not  enlist  public  feeling  against  those 
who  inflict  it — and  because  the  good  sense  of  the  people  has  discovered 
that  the  laws  are  made  for  their  own  benefit,  and  ought  to  be  executed. 
He  need  not  be  very  old  to  remember  the  period  when  the  place  of 
jailor  was  considered  so  odious  that  very  rarely  would  a  man  esteemed 
in  society  accept  it ;  yet  now  the  office  of  keeper  of  a  state  prison  is 
sought  for  by  honourable  men  as  an  honourable  office.  What  has 
produced  this  change  ?  The  question  is  not  a  difficult  one,  and  the 
answer  has  been  anticipated. 

We  come  then  to  the  conclusion,  pointed  out  by  reason,  and  con- 
firmed by  experience:  that  the  ministers  employed  in  the  execution  of 
just  and  mild  laws,  well  understood  by  an  intelligent  people,  will  in  no 
grade  of  their  rank  be  considered  as  dishonourable;  and  as  a  just  conse- 
quence, that  the  duty  of  aiding  them  will  not  be  so  considered.  The 
immediate  question  then  recurs, — will  the  acceptance  of  a  reward  for 
such  aid  attach  any  odium  to  the  performance  of  the  duty  ?  The  officer  re- 
ceives a  salary  or  fees  for  the  performance  of  his  permanent  functions, 
why  should  not  the  individual  receive  a  compensation  for  his  occasional 
service  ?  In  both  cases  there  is  a  sacrifice  of  private  convenience  to 
produce  a  public  good  :  why  should  it  not,  in  both  cases,  be  compen- 
sated ?  Public  prejudice  is  against  it:  this  cannot  be  denied;  but  the 
same  prejudice  formerly  existed  against  the  functions  of  the  regular 
officer,  yet  we  have  seen  this  giving  way  gradually  to  the  force  of  truth 
and  the  increase  of  knowledge.  Why  may  not  the  same  effect  be  ex- 
pected in  this  analogous  case  ?  With  this  hope  the  text  of  the  law  con- 
tains the  reason  for  enacting  it;  it  exposes  the  folly  and  danger  of  the 
prejudice  that  would  counteract  it;  and  protects  those  who  are  independ- 
ent enough  to  do  the  duty  and  receive  the  reward,  by  a  penalty  against 
any  defamatory  reproaches  against  them,  which  the  remains  of  a  ground- 
less prejudice  might  suggest.  The  reward  is  pecuniary  only;  it  is  mo- 


THE  CODE  OF  PROCEDURE.  207 

derate,  and  it  is  confined  to  certain  offences.  To  have  made  it  honorary, 
would  have  been  to  destroy  the  very  nature  of  that  recompense,  by 
making  it  too  common.  The  amount  is  sufficient  in  most  cases  to  in- 
demnify for  the  loss  of  time  and  for  the  trouble  attending  the  service, 
and  not  so  great  as  to  offer  any  temptation  for  false  accusations.  It  is 
given  only  for  the  denunciation  of  great  offences,  in  the  punishment  of 
which  the  public  have  a  peculiar  interest;  and  it  is  extended  to  breaches 
of  the  laws  against  duelling  and  forgery,  because,  in  the  one  instance, 
the  prejudices  of  false  honour  call  for  some  additional  motive  to  induce 
persons  to  give  information  ;  and  in  the  other,  an  attention  to  private 
interest  might  induce  the  person  who  was  endeavouring  to  be  defrauded, 
to  make  compromises  that  would  defeat  the  ends  of  justice,  unless  it  were 
made  the  interest  of  some  other  person  to  prosecute.  No  offence  that 
is  only  made  punishable  on  the  complaint  of  the  party  injured,  comes 
within  this  provision.  An  accomplice  cannot  claim  the  reward,  because 
it  would  be  in  vain  to  offer  it  to  him  without  adding  to  it  the  promise 
of  impunity;  nor  can  the  party  injured,  because,  in  many  cases,  his 
testimony  is  necessary  for  conviction,  and  it  was  not  deemed  proper  to 
place  him  in  a  situation  that  must  necessarily  detract  from  his  credit. 

The  third  and  fourth  chapters  of  this  title  prescribe  the  manner  in 
which  the  interference  of  the  magistrate  may  be  required  to  prevent 
offences,  or  to  restore  to  the  proprietor  articles  which  may  have  been 
illegally  and  fraudulently  taken  from  his  possession.  In  the  first  branch 
(the  prosecution  of  an  intended  offence  by  requiring  security)  the  regu- 
lations of  the  English  law,  as  far  as  they  could  with  certainty  be  dis- 
covered, have  been  followed;  and  where  its  rules  were  uncertain  or  de- 
fective, provisions  have  been  added  in  accordance  with  the  spirit  of  that 
law,  (by  which,  on  this,  as  on  other  occasions,  I  repeat  it,  1  have  been 
guided  when  I  found  it  to  accord  with  the  principles  established  in  the 
report  that  has  met  your  approbation).  To  obtain  the  required  security, 
the  party  must  declare,  upon  oath,  that  he  fears  some  offence  will  be 
committed  against  his  person  or  property  by  some  person  whom  he  must 
designate  ;  he  must  add  the  reasons  which  cause  his  apprehension;  and 
if  the  cause  assigned  shall,  in  the  opinion  of  the  magistrate,  justify  the 
fear,  he  shall  direct  the  person  complained  of  to  be  brought  before  him. 
The  fear  entertained  must  be  that  the  offence  will  be  committed  by 
violence,  because  against  every  other  injury  to  person  or  property  every 
one  is  supposed  to  be  able  to  protect  himself  by  proper  care.  The  duty 
of  the  magistrate  to  hear  the  party  accused,  and  examine  his  proof,  is 
pointed  out;  the  security  is  set  forth,  and  the  cases  in  which  courts  may 
exact  it  on  conviction.  A  provision,  entirely  new,  is  introduced,  by 
which  the  magistrate,  before  whom  complaint  is  made  of  an  intended 
offence,  when  the  proof  does  not  show  that  the  complainant  had  just 
ground  of  fear,  is  directed,  before  he  discharges  the  accused,  to  explain 
to  him  the  nature  of  the  offence  which  was  endeavoured  to  be  guarded 
against,  and  the  punishment  annexed  to  it  by  law,  and  to  admonish  him 
that  if  he  should  commit  the  same,  he  will  incur  the  highest  penalty 
that  can  be  inflicted  by  law  for  such  offence.  Another  article  directs 
the  like  admonition,  and  prescribes  the  same  consequences  in  cases  of 
applications  setting  forth  a  well  founded  apprehension  of  an  intended 
defamation,  by  speech,  by  writing,  or  by  printing.  The  constitution 
of  our  state  forbids  any  previous  restraint,  even  when  such  intent  shall 
be  proved  ;  but  as  it  makes  the  party  liable  for  the  abuse  of  the  liberty 


208  INTRODUCTORY  REPORT  TO 

it  gives,  it  was  thought  that  the  evil  might,  in  some  measure,  be  pre- 
vented by  the  fear  of  the  increased  punishment,  if  the  offence  should  be 
committed  after  the  admonition. 

]Jy  the  search  for  property  taken  by  theft  or  fraud,  some  of  the  most 
important  rights  of  the  citizen  are  at  least  endangered,  if  not  actually 
invaded.  Too  many  precautions,  therefore,  cannot  be  taken  to  prevent 
the  mischiefs  that  might  arise  from  its  abuse  ;  and  if  the  observance  of 
the  forms  prescribed  should  sometimes  involve  the  loss  of  property,  the 
evil  will  be  less  than  the  vexation  which  a  less  restrained  power  to  in- 
vade the  domicil  of  the  citizen  would  inevitably  occasion.  In  framing 
this  chapter  the  utmost  care,  therefore,  has  been  taken  to  guide  the 
judge  in  the  exercise  of  the  discretion  which  must  necessarily  direct  him 
in  this  important  function  of  his  office — to  point  out  precisely  the  cases 
in  which  alone  he  can  perform  it — to  state  what  evidence  he  should  re- 
quire in  each  of  those  several  cases — to  direct,  with  the  most  minute 
precision,  the  material  parts  of  the  order  he  shall  issue,  and  to  provide 
that  such  order  shall  confer  all  the  powers  necessary  for  the  attainment 
of  the  ends  proposed,  and  also  every  limitation  to  prevent  abuse  and 
secure  the  innocent  from  injury,  and  even  those  who  may  afterwards  be 
found  guilty  from  vexation.  The  duties  of  the  magistrate,  of  the  parties, 
the  witnesses,  and  particularly  of  the  officers  who  execute  the  writ,  are 
separately,  and  it  is  hoped  clearly  and  accurately  detailed;  and  the 
penalties  for  any  vexatious  complaint,  or  abuse  of  authority,  or  denial  of 
justice,  are  denounced. 

Someof  these  provisions  are  new;  and  those  which  are  notso,  appearfor 
the  first  time  in  their  natural  order  and  connexion  with  each  other;  and  it  is 
believed,  that  if  they  should  receive  the  legislative  sanction,  much  petty 
oppression,  extortion  and  fraud,  will  be  prevented,  of  which  the  igno- 
rant and  indigent  may  otherwise  become  the  victims.  This  class,  de- 
pressed by  their  circumstances,  perhaps  by  their  vices  or  indolent 
habits,  incapable  from  their  want  of  instruction,  of  asserting  their  rights, 
are  those  who  most  need  the  protection  of  the  laws,  and  in  most  countries 
they  are  those  who  receive  the  least. 

A  second  title  of  this  book  is  devoted  to  the  means  of  putting  an  end 
to  such  offences  as  are  permanent  or  continuous  in  their  nature.  The 
first  six  chapters  of  which  relate  to  the  means  of  putting  a  stop  to  the 
several  offences  discussed  in  the  Code  of  Crimes  and  Punishments,  as 
those  against  public  tranquillity,  public  health  and  safety,  the  enjoy- 
ment of  public  and  common  property,  morals  and  decency,  and  repu- 
tation. These  consist  chiefly  of  references  to  the  correspondent  parts 
of  that  code,  which,  on  these  heads,  direct  the  interference  of  the 
magistrate,  or  regulate  the  exertion  of  personal  defence.  The  se- 
venth book  is  highly  important.  Under  the  title  of  suppressing  of- 
fences against  personal  liberty,  it  contains  the  regulations  for  granting 
and  enforcing  the  writ  of  habeas  corpus.  No  exposition  of  this  chapter 
is  necessary;  because  it  has  already  received  the  sanction  of  your  prede- 
cessors; and  because  the  subject  is  fully  discussed  in  the  Report  on  the 
plan  of  a  Penal  Code,  which  received  the  approbation  of  the  legis- 
lature in  1822.  Detached  parts  of  this  book  have  been  enacted  into 
a  law,  incorporated  in  the  Code  of  Civil  Procedure  ;  but  I  submit  to 
the  legislature  the  propriety  of  repealing  so  much  of  that  code  as 
relates  to  this  subject,  which  surely  is  no  part  of  civil  process,  and  suf- 
fering the  whole,  as  now  presented  and  formerly  approved,  to  occupy 
its  place  in  the  present  code.  This  title  closes  by  a  chapter  directing 


THE  CODE  OF  PROCEDURE.  209 

the  manner  in  which  permanent  offences  against  property  are  to  be  sup* 
pressed  and  possession  restored  to  the  owners  of  that  which  has  been 
seized  as  stolen  or  fraudulently  obtained. 

A  short  but  very  important  title,  consisting  of  two  chapters,  contains 
the  regulations  for  calling  out  and  employing  the  military,  in  aid  of  the 
civil  power.  The  first  chapter  designates  the  cases  in  which  that  power 
may  be  called  for,  and  the  mode  of  making  the  application.  The  second 
regulates  the  manner  in  which  the  military  force  may  be  employed. 
By  military  force  is  intended  the  militia  of  the  state  :  and  the  code 
provides,  that  it  can  only  be  employed  by  order  of  the  governor, 
or,  when  he  is  too  distant  to  act,  by  that  of  the  militia-general  com- 
manding the  district ;  and  the  order  can  only  be  given  on  the  applica- 
tion, in  writing,  of  three  magistrates,  one  of  whom  must  be  a  judge, 
supported  by  an  affidavit  of  two  inhabitants  stating  that  a  riot  or  in- 
surrection has  taken  place  in  the  parish  in  which  they  reside,  and  that 
it  cannot  be  quelled  by  the  force  of  the  ordinary  civil  authority.  The 
application  must  state  the  circumstances  of  the  case  and  the  number  of 
men  that  will  probably  be  required  to  restore  order.  On  this  applica- 
tion, the  governor  or  commanding  officer  is  authorized  to  direct  the  pro- 
per militia  force  to  march  to  the  place  indicated,  under  the  command 
of  an  officer  of  requisite  rank,  and  put  himself  under  the  direction  of 
the  magistrates  who  made  the  requisition. 

In  all  riots  or  insurrections,  the  immediate,  sometimes  the  ultimate 
object  is  violence  to  some  obnoxious  person,  or  the  plunder  or  destruction 
of  property.  To  protect  these,  without  the  useless  sacrifice  of  human 
life,  is  the  object  of  the  laws  on  this  subject;  therefore,  all  the  provisions 
of  this  chapter  are  intended,  if  possible,  to  stop  the  violence  by  the  fear 
of  an  armed  force,  without  having  recourse  to  its  dreadful  execution. 
The  militia  are  only  to  be  employed  where  the  ordinary  civil  power 
has  been  tried  and  found  insufficient.  It  is,  when  practicable,  to  be 
stationed  between  the  rioters  and  the  object  of  their  intended  violence; 
to  act  strictly  on  the  defensive,  and  under  the  direction  of  the  magis- 
trate. When  the  use  of  weapons  becomes  necessary,  to  use  only  those, 
such  as  the  bayonet  and  sword,  which  may  be  directed  solely  against 
the  assailants,  without  endangering  the  lives  of  others;  leaving  the  more 
dangerous  and  uncontrollable  effect  of  fire-arms  (which  may  injure  the 
innocent  as  well  as  the  guilty)  for  the  last  resort.  In  no  case  can  the 
armed  force  be  brought  up,  before  the  magistrate  has  displayed  a  white 
flag,  and  ordered  the  rioters  to  disperse  ;  and,  unless  to  repel  an  attack 
endangering  life,  no  order  is  to  be  given  for  the  use  of  offensive  arms, 
until  half  an  hour  has  elapsed  after  the  order  to  disperse,  without  its 
being  obeyed.  The  remarks  on  this  chapter  cannot  be  closed  without 
observing  the  essential  difference  between  the  nature  of  the  armed  force, 
the  use  of  which  is  contemplated  by  the  code,  and  that  employed  on 
similar  occasions  in  England  and  other  countries  in  Europe.  There  it 
is  composed  of  men  entirely  under  the  control  of  the  executive  branch 
of  the  government,  upon  which  they  depend  entirely  for  subsistence, 
Here,  except  in  the  circumstances  of  their  being  organized  and  armed, 
they  differ  in  nothing  from  the  power  which  is  at  the  daily  call  of  the  civil 
officer.  Without  arms  or  military  array,  they  are  the  common  posse 
comitatus,  as  it  is  called,  or  civil  power  of  the  country ;  the  same  ties 
of  property,  of  family,  of  love  of  country  and  of  liberty,  to  make  them 
effective  instruments  for  the  suppression  of  disorder,  and  the  most  unfit, 
2B 


210  INTRODUCTORY  REPORT  TO 

even  when  disciplined  and  armed,  that  could  be  chosen  to  promote  any 
scheme  of  usurpation.  The  people  can  apprehend  no  danger  to  their 
liberties  from  such  a  force,  even  when  it  is  actively  employed  against 
themselves — when  deceived  by  the  factious,  agitated  by  party,  or  in- 
dignant against  real  or  imagined  injury,  they  are  led  to  oppose  the 
operation  of  the  laws.  Yet  with  all  these  safeguards,  the  legislator 
would  be  unfaithful  to  his  trust  who  should  neglect  other  precautions 
against  the  necessary  evil  of  employing  the  weapons  of  war  in  the  work 
of  peace.  According  to  the  erroneous  ideas  of  the  ancient  jurispru- 
dence, the  sword  of  justice  always  was  unsheathed,  always  brandished. 
In  our  more  correct  conceptions,  it  is  never  placed  in  her  hands,  but 
in  the  last  extreme  of  necessity. 

The  review  of  that  part  of  the  code  which  relates  to  preventive  pro- 
cedure, is  now  finished.  It  is  a  meagre  title  in  the  English,  and  as 
sterile  in  our  law,  for  we  have  added  nothing  by  statute  to  that  part  of 
the  common  law  which  we  have  adopted  ;  and  in  the  laws  of  other 
nations,  with  which,  however,  I  am  but  very  imperfectly  acquainted,  I 
find  little  or  nothing  on  this  important  branch  of  jurisprudence.  Pains 
and  penalties !  Every  where  penalties  !  Every  contrivance  to  punish — 
scarcely  a  provision  to  prevent  or  repress !  If  I  did  not  think  it,  in  some 
measure,  disrespectful  to  the  honourable  body  I  address,  to  express  a 
doubt,  that  every  part  of  the  plan  they  have  directed  to  be  laid  before 
them  would  receive  equal  attention,  I  should  venture  to  request  a  scru- 
pulous examination  of  the  title  we  have  just  reviewed,  as  one  of  the 
most  vital  importance.  I  would  entreat  them  to  enlarge  it  by  such 
enactments  as  their  superior  wisdom  should  suggest,  for  the  great,  the 
sacred  object  of  preventing  offences,  rather  than  punishing  them;  and  I 
dare,  even  at  the  risk  of  being  thought  importunate,  and  of  tiring  them 
by  repeating  the  same  argument,  earnestly  pray  them  to  consider  deeply 
the  necessity  of  early  education — general  education — religious,  moral 
and  literary  education,  as  the  great  lever  for  raising  the  people  above 
the  temptation  of  crime,  and  the  only  means  by  which  offences  may  be 
prevented  by  the  moral  sense,  rather  than  repressed  by  the  operation 
of  law ;  and  in  connexion  with  this  important  branch  of  our  subject,  I 
refer  to  the  different  establishments  provided  for  by  the  Code  of  Prison 
Discipline,  under  the  heads  of  School  for  Reform,  House  of  Detention, 
and  House  of  Refuge  ;  and  to  the  reasons  which  will  be  urged  in  the 
Introductory  Report  to  that  Code  for  this  establishment. 

Haying  considered  the  means  of  preventing  inchoate  offences,  and 
arresting  the  course  of  such  as  are  in  operation,  we  now  approach  that 
which  may,  perhaps,  with  a  stricter  propriety,  be  considered  as  a  Code 
of  Criminal  Procedure,  that  is  to  say,  the  mode  of  conducting  prose- 
cutions for  offences  already  consummated.  This  is  the  subject  of  the 
second  book  of  the  Code.  The  first  title  of  this  book  contains  the 
law  of  Arrest  and  Bail,  two  very  important  subjects  ;  hitherto  left,  for 
the  most  part,  without  positive  legislation  to  guide  the  officer,  the  ma- 
gistrate and  the  citizen,  in  the  daily  calls  upon  them  to  act  in  the  pro- 
secution of  alleged  offences,  or  to  direct  the  accused  in  the  assertion  of 
rights.  By  this  part  of  the  code  the  omission  is  endeavoured  to 
be  supplied.  The  first  chapter  contains  definitions  and  general  prin- 
ciples necessary  for  the  full  understanding  of  the  provisions  which  follow, 
and  of  the  reasons  on  which  they  are  enacted.  The  nature  of  a  com- 
plaint for  an  alleged  offence,  is  explained,  and  its  effects  pointed  out. 


THE  CODE  OF  PROCEDURE.  211 

What  proof  of  such  complaint  is  necessary  to  give  ft  the  force  of  a 
legal  accusation,  and  to  justify  an  order  of  arrest,  is  stated.  The  necess- 
ity of  such  arrest,  to  ensure  the  appearance  of  the  witness  on  the  trial, 
the  necessity  of  the  commitment  further  to  secure  that  end,  and  the 
condition  of  the  pledge  contained  in  the  contract  of  bail,  is  fully  ex- 
plained and  elucidated.  These  follow  in  regular  order  and  in  successive 
chapters,  each  one  appropriated  to  a  distinct  head.  The  first  specifies 
the  mode  of  making  the  complaint  and  accusation,  and  of  granting  the 
order  of  arrest.  This  last  mentioned  subject,  the  order  of  arrest,  is 
the  subject  of  a  separate  section.  To  deprive  a  citizen  of  liberty,  before 
he  is  convicted  of  any  offence,  can  only  be  justified  by  the  necessity 
of  securing  his  appearance  to  attend  the  trial  and  suffer  the  penalty,  if 
the  charge  be  well  founded.  But  it  cannot  be  justified  at  all  in  the  fol- 
lowing cases  :  first,  where  the  punishment  annexed  to  the  offence  is  so 
light  as  to  destroy  the  presumption  that  the  accused  would  avoid  it  by 
flight — in  other  words,  where  the  inconvenience  attending  flight,  would 
be  greater  than  the  evil  of  the  punishment  ;  secondly,  when  the  evi- 
dence is  not  such  as  to  justify  a  belief  that  the  accused  is  guilty  ;  nor, 
lastly,  where  the  accused  will  give  such  a  pledge  for  his  appearance 
as  will  render  it  more  probable  that  he  will  remain,  and  either  show  his 
innocence  or  suffer  the  penalty  of  his  guilt,  than  that  'he  will  forfeit 
the  pledge  he  has  given.  The  chapter  is  drawn  in  accordance  with 
these  views  of  the  subject.  In  case  of  misdemeanor,  where  there  is 
no  possibility  that  the  party  will  incur  the  certain  evil  of  flight,  to 
avoid  the  comparatively  light  suffering  of  the  penalty  directed  by  law, 
there  is  no  arrest,  unless  it  be  incurred  by  wilful  disobedience  to  a 
citation  commanding  the  party  to  appear.  In  accusations  of  a  graver 
nature,  the  evidence  in  support  of  them  must  be  on  oath  ;  it  must 
be  positive  that  the  offence  has  been  committed,  and  produce  belief 
in  the  mind  of  the  magistrate  that  the  person  designated  has  com- 
mitted it,  before  the  order  for  his  arrest  can  be  granted.  The  com- 
plaint, and  the  evidence  in  support  of  it,  must  be  reduced  to  writing, 
signed  and  sworn  to  by  the  witnesses.  The  order  must  plainly 
designate  the  offence  charged,  that  the  defendant  may  be  prepared 
on  his  appearance  before  the  magistrate  with  his  defence,  and  it  must 
be  delivered  to  an  officer  of  justice  who  is  to  make  the  arrest.  In 
order,  as  far  as  possible,  to  avoid  oppression,  to  ensure  the  due  exe- 
cution of  the  law,  to  protect  the  officer  against  the  effects  of  mistake 
in  the  performance  of  his  duty,  and  to  point  out  to  private  citizens  that 
which  may  be  required  of  them  when  called  on  to  assist  him,  as  well 
as  to  designate  to  the  accused  the  bounds  between  legal  resistance  and 
the  submission  required  by  law  ;  all  these  points  are  fully  explained 
under  distinct  heads  in  this  chapter.  Great  care  has  been  taken  in 
framing  the  law  on  these  heads,  so  as  to  make  it  clear  to  the  most  com- 
mon understanding  ;  because,  in  the  whole  course  of  procedure,  there 
is  no  circumstance  productive  of  so  many  vexatious  proceedings  and 
serious  and  frequently  fatal  effects,  as  that  of  arrests.  Officers  of  justice, 
often  uneducated  and  overbearing  men,  either  do  not  know,  or  design- 
edly exceed,  the  bounds  of  their  authority.  The  accused  sometimes 
submits  to  illegal  acts,  at  others,  resists  those  to  which  he  ought  to 
submit.  The  citizen,  when  legally  called  on  to  enforce  the  execution 
of  the  law,  refuses  to  obey,  or  makes  himself  liable  to  prosecution  for 
aiding  in  an  illegal  arrest ;  and  it  is  believed,  that  of  all  the  cases  of 
murder,  manslaughter,  violent  assault  and  false  imprisonment,  reported 


212  INTRODUCTORY  REPORT  TO 

in  the  books,  no  inconsiderable  proportion  will  be  found  to  have  arisen 
from  ignorance  of  rights  and  duties  in  granting  warrants,  in  making 
arrests,  or  resisting  them — ignorance  inevitable,  from  the  state  of  our 
laws  ;  for  where  (it  is  asked  on  this  as  it  has  been  on  former  occasions), 
where  is  the  necessary  information  to  be  obtained  ?  The  written  law 
is  silent ;  the  oracles  who  pronounce  that  which  is  unwritten,  only 
speak  when  the  case  has  already  happened  ;  and  the  unfortunate  citizen, 
called  on  to  act  or  suffer  at  a  moment's  warning,  is  forced  to  do  it  at 
his  own  risk  ;  for  those  to  whom  he  has  confided  the  care  of  fram- 
ing rules  for  his  government,  have  hitherto  obstinately  refused,  or 
negligently  omitted  to  dictate  them.  It  is  time  that  this  duty  should 
be  done  :  it  is  more  than  time  that  this  reproach  should  be  taken 
away  from  our  legislation.  You  declare,  that  every  man  who  kills  an 
officer  in  the  legal  discharge  of  his  duty,  is  guilty  of  murder,  and  shall 
suffer  death.  You  say,  that  resistance  to  an  unlawful  arrest  is  justifia- 
ble ;  and  you  cruelly  and  wantonly  refuse  to  explain  what  is  a  lawful 
and  which  an  unlawful  arrest.  You  refer  to  the  contradictory  and  con- 
fused decisions  of  courts  in  a  foreign  country  for  information  on  this 
all-important  point.  Do  you  understand  those  laws  ?  Are  they  clear  ? 
— deign  then  to  clothe  them  in  the  words  of  legislative  authority  : 
publish  them  to  your  constituents.  Are  the  cases  contradictory  ? — 
tell  us  which  of  them  is  the  law.  Are  they  confused  and  uncertain  ? 
—explain  them.  Do  you  not  understand  them  yourselves  ? — then  how 
should  we  your  constituents  be  guided  by  them,  in  matters  too  on  which 
depend  life  or  death  ?  If  the  rules  now  ofiered  are  not  approved, 
frame  others.  When  obedience  is  exacted,  under  such  a  sanction,  the 
least  the  people  can  require  is  to  be  clearly  and  explicitly  told  what  it  is 
they  are  to  obey.  I  feel  that  I  am  repeating  here  ideas  that  have  been 
more  than  once  expressed,  and  that  I  am  urging  former  arguments  with  a 
zeal  that  may  be  deemed  indiscreet,  and,  I  hope,  is  unnecessary  ;  but  I 
have  a  great,  a  holy  duty  to  perform,  and  I  dare  not  leave  any  part  of  it 
undone,  from  the  fear  of  giving  offence,  or  the  hope  of  conciliating 
favour,  much  less  that  of  gaining  applause.  The  solemn  truth  must  be 
told,  must  be  repeated,  until  it  is  felt.  "LEGISLATORS  ARE  IN  EFFECT 

THE    MURDERERS    OF    THOSE  WHO    PERISH  BY  THEIR  WILFUL    NEGLECT 

TO  PROVIDE  GOOD,  OR  TO  REPEAL  BAD  LAWS."  This  responsibility 
cannot  be  thrown  off,  or  even  divided,  however  numerous  the  body 
upon  whom  it  devolves  :  it  attaches  to  every  individual  whose  vote  is 
counted  either  against  the  reform  or  for  postponing  it  to  other  matters 
of  minor  consideration  :  and  the  reflection  finds  its  place  very  natu- 
rally at  the  close  of  a  review  of  the  chapter  relating  to  arrests,  a  sub- 
ject in  which  so  many  require  the  aid  of  the  law  to  guide  them,  by 
clear  and  precise  rules,  in  order  to  avoid  heavy  penalties  ;  in  which  so 
few  receive  that  aid  at  all,  and  none  in  the  manner  in  which  it  ought 
to  be  afforded. 

The  arrest  being  made,  the  next  proceeding  is  to  bring  the  accused 
before  the  magistrate,  that  he  may  proceed  to  examine  and  discharge, 
commit,  remand  for  further  examination,  or  deliver  to  bail.  Rules 
are  laid  down  in  the  fourth  chapter  for  each  of  these  alternative  duties. 
The  first  is  the  examination.  Our  present  law  prescribes,  that  the 
magistrate  is  to  reduce  to  writing  the  answers  which  the  accused  may 
voluntarily  make  to  such  questions  as  may  be  put  to  him  without  any 
threat  or  promise,  and  the  construction  put  upon  this  has,  I  believe, 
generally  been  that  no  inference  against  the  prisoner  is  to  be  made 


THE   CODE  OF  PROCEDURE.  213 

from  his  refusal  to  answer  such  question  ;  and  practice,  which  with  us 
so  frequently  usurps  the  authority  of  law,  has  established  it  as  a  rule 
frequently  followed,  to  declare  this  explicitly  to  the  prisoner,  thereby 
inviting  him  to  silence^  and,  of  course,  depriving  the  prosecution  of 
the  advantage  to  be  derived  from  his  communications.  The  course 
directed  by  the  code  is  somewhat  different,  and  requires  some  discussion. 
The  great  object  of  all  criminal  procedure  is  the  conviction  of  the 
guilty — but  of  the  guilty  only.  Every  precaution  which  the  wisest 
legislation  can  suggest,  should  be  employed  to  prevent  its  falling  on 
the  innocent.  Yet  such  is  the  imperfection  of  all  human  institutions, 
that,  after  these  precautions  are  taken,  it  must  happen  that  innocence  is 
sometimes  mistaken  for  guilt,  and  incurs  its  punishment.  To  require, 
therefore,  that  a  code  of  procedure  should  be  so  framed  as  to  prevent 
the  possibility  of  this  error,  would  be  absurd  ;  and  the  only  mode  of 
affording  perfect  security  from  conviction  to  the  innocent,  would  be  to 
extend  impunity  to  the  guilty.  All  that  the  best  legislation  on  this 
subject  can  do,  is  to  take  every  precaution  consistent  with  the  main 
object  (the  conviction  of  guilt),  to  secure  innocence  from  being  con- 
founded with  it  before  condemnation,  and  to  correct  any  errors  which 
may  afterwards  be  discovered.  Therefore,  it  is  no  good  objection  to 
any  particular  part  of  criminal  procedure  to  say,  that  it  may  involve  the 
innocent.  That  we  have  seen  is,  in  some  cases,  inevitable  under  the 
best  systems.  Every  question,  therefore,  of  this  nature,  must  be  one 
which  presents  a  choice  between  two  measures,  each  of  which  has 
some  portion  of  evil  attached  to  it,  and  it  must  consequently  always  be 
one  of  sound  discretion  to  take  that  which  has  the  least. 

In  the  examination  of  the  accused,  the  advantage  is,  that  if  guilty, 
he  will  frequently  betray  himself  by  his  own  story.  The  truth  would 
be  a  confession.  He  must  have  recourse,  therefore,  to  falsehood  ;  but, 
as  error  is  infinite,  he  will  state  some  things  which  can  be  easily  dis- 
proved by  circumstances  or  by  other  witnesses,  and  the  investigation  of 
which  would  lead  to  his  conviction.  Suppose  him,  on  the  other  hand, 
to  be  innocent  :  his  statements  will  contain  the  truth,  because  he  has 
no  need  of  concealment,  and  the  circumstances  and  witnesses  which 
would  detect  his  falsehood,  in  the  one  case,  will  evince  his  truth  in  the 
other.  If  the  magistrate,  who  examines,  in  this  preparatory  stage, 
were  the  tribunal  which  finally  tries,  there  would  be  another  advantage 
in  permitting  the  interrogation  of  the  accused,  his  looks,  his  manner 
of  answering,  his  hesitation  or  promptitude,  even  his  silence,  would 
have  their  effect  in  determining  on  his  innocence  or  guilt.  But  we  are 
now  speaking  of  the  examination  before  the  committing  magistrate, 
who  has  seldom  any  agency  in  the  final  trial ;  and  even  when  the  ex- 
amination is  made  before  the  judge  who  afterwards  presides  at  such 
trial,  the  jury,  not  the  judge,  are  to  determine  the  question  of  guilt  ; 
therefore,  no  impression  that  can  be  made  in  favour  of  the  prisoner  or 
against  him,  from  his  manner  and  appearance  on  his  examination,  can 
have  any  avail  on  the  trial.  From  this  circumstance  arises  the  first 
item  in  the  detail  of  disadvantages  attending  the  subjecting  the  prisoner 
to  examination.  That  his  answers,  not  being  heard  by  those  who  are 
to  decide  on  his  innocence  or  guilt,  can  only  be  communicated  to  them  by 
being  reduced  to  writing.  The  difficulty  of  doing  this,  so  as  to  express 
precisely  the  ideas  intended  to  be  conveyed,  cannot  be  appreciated  but 
by  professional  men,  who  must  have  witnessed  how  often  inaccuracy  of 


214  INTRODUCTORY  REPORT  TO 

expression  in  the  speaker  and  carelessness  or  misapprehension  in  the 
scribe,  concur  in  producing  the  most  dangerous  errors,  even  without 
supposing  any  intent  to  mislead  or  falsify.  An  unrestrained  right  of 
interrogating  is  also  very  apt  to  produce  insidious  and  catching  ques- 
tions. Instead  of  a  cool  and  impartial  attempt  to  extract  the  truth,  the 
examination  becomes  a  contest,  in  which  the  pride  and  ingenuity  of 
the  magistrate  are  arrayed  against  the  caution  or  evasions  of  the  accused, 
and  every  construction  will  be  given  to  his  answers  that  may  fix  upon 
him  the  imputation  of  guilt.  After  weighing  these  and  other  arguments 
on  both  sides  of  this  important  question,  I  came  to  this  conclusion,  that 
it  would  be  unwise  to  abandon  the  advantage  to  be  derived  from  an 
examination  of  the  accused  ;  but  at  the  same  time,  that  justice  required 
us  to  reduce  to  their  lowest  term  the  two  inseparable  evils  attached  to 
this  mode  of  proceeding,  and  I  thought  that  this  might  be  effected  by 
restricting  the  magistrate  to  a  prescribed  form  of  interrogatory,  so 
drawn  that  no  innocent  person  could  be  entrapped  by  answering  them  ; 
while,  at  the  same  time,  evasions  or  untrue  answers  might  frequently 
lead  to  the  detection  of  guilt ;  and  to  avoid  inaccuracies  in  recording 
the  answers,  the  interrogatories  are  pointed  only  to  such  simple  cir- 
cumstances as  can  be  detailed  with  the  greatest  simplicity  of  language, 
and  they  are  not  considered  as  complete  until  they  have  been  signed  by 
the  party  and  corrected  by  him,  so  as  to  express  exactly  the  idea  he 
meant  to  convey  ;  if  we  add  to  this  that  he  has  the  assistance  of  counsel, 
and  has  heard  what  the  witnesses  against  him  have  deposed,  it  will  be 
found  that  the  accused  is  in  no  danger  of  being  circumvented  or  intim- 
idated to  his  prejudice  in  the  preparatory  examination.  He  is  first 
apprized  that  although  he  may  refuse  to  answer  the  interrogatories  that 
are  about  to  be  put  to  him,  or  answer  them  in  any  way  he  may  think 
fit,  yet  a  false  answer,  or  his  refusal  to  give  any,  must  operate  against 
him  on  the  trial.  This  consequence  is  inevitable,  and  under  our  pre- 
sent practice,  where  he  is  expressly  told  that  he  is  at  perfect  liberty  to 
answer  or  not,  as  he  pleases,  which  implies  that  no  injury  to  him  can 
result  from  his  silence,  the  same  result  is  produced  ;  and  the  prisoner 
is  invited  to  silence  by  being  assured  that  it  will  do  him  no  injury, 
when  in  the  nature  of  things  the  jury  cannot  but  infer  guilt  from  false 
representations,  or  from  silence,  without  any  motive  but  that  of  con- 
cealing the  truth  ;  either  of  which  circumstances,  when  they  occur, 
are  given  in  evidence  according  to  our  present  practice.  It  was,  there- 
fore, thought,  that  justice  to  the  prisoner  as  well  as  to  the  public,  re- 
quired that  full  notice  should  be  given  of  the  deductions  that  would  be 
drawn  from  his  silence  or  evasions. 

It  cannot  be  denied,  however,  that  cases  may  be  supposed  in  which 
even  the  guiltless  may  be  induced,  from  a  strange  combination  of  cir- 
cumstances, to  remain  silent,  or  to  give  a  false  colouring  to  the  transac- 
tion which  has  involved  them  in  suspicion.  But  this  reflection  did  not 
prevent  my  adopting  the  mode  of  interrogation  which  I  recommend  : 
First ;  because  the  existence  of  such  circumstances  must  be  of  very 
doubtful  occurrence  ;  and  if  they  should  happen,  the  cases  in  which 
they  occur  being,  according  to  other  parts  of  the  proposed  system, 
within  the  reach  of  remission  and  compensation,  ought  not  to  form  an 
objection  to  a  part  of  procedure  otherwise  advantageous.  Secondly, 
because  the  same  objection  lies  to  our  present  practice,  and  must  attach 
to  any  other  that  may  be  adopted,  there  being  nothing  that  can  secure 


THE  CODE  OF  PROCEDURE.  215 

the  accused,  if  he  is  tried  at  all,  from  the  unfavourable  impression  that 
his  silence  or  falsehood  may  make  upon  his  judges  if  he  is  in  any  way 
interrogated,  or  from  the  effects  of  circumstances  which  render  guilt 
probable,  if  they  cannot  be  explained.  With  this  explanation  of  the 
reasons  on  which  it  is  founded,  the  attention  of  the  legislature  is  re- 
quested to  the  fourth  chapter,  and  it  is  hoped  that  it  will  be  found  to 
contain  every  provision  necessary  to  protect  the  prisoner  from  any  ef- 
fects injurious  to  his  safety,  arising  from  surprise,  intimidation,  or  false 
hopes,  if  he  be  innocent ;  and  at  the  same  time  secure  to  the  prosecu- 
tion the  advantage  of  that  evidence  which  a  consciousness  of  guilt  will 
generally  furnish  in  his  answers  to  the  interrogatories.  A  prejudice, 
but  it  appears  to  me  a  groundless  one,  and  certainly  very  favourable  to 
the  escape  of  the  guilty,  exists  against  procuring  testimony  from  the 
judicial  examination  of  the  party  accused  before  a  magistrate  ;  and  yet, 
without  scruple,  we  admit  testimony  of  his  informal  and  private  con- 
fessions to  individuals,  as  if  he  would  be  more  apt  to  inculpate  himself 
without  cause  when  put  on  his  guard  by  the  admonition  of  the  judge, 
and  a  knowledge  of  the  consequences,  than  he  would  be  in  a  loose  con- 
versation which  he  must  imagine  would  never  be  repeated,  and  as  if 
the  record  of  what  he  has  said,  corrected  and  signed  by  himself  after 
due  deliberation  and  with  the  assistance  of  counsel,  were  not  as  high 
evidence  of  the  fact,  as  the  declaration  of  a  casual  witness  who  may  pur- 
posely misrepresent  the  terms  of  the  confession,  or  unintentionally  give 
it  a  false  colouring.  It  cannot  be  denied  that  an  innocent  man  of  very 
weak  nerves  may  sometimes,  in  his  confusion,  give  contradictory  or  false 
statements  that  may  endanger  his  safety,  or  do  acts  that  cannot  bs  ac- 
counted for  but  on  a  supposition  of  guilt.  So  may  an  innocent  man 
incur  the  danger  of  conviction  from  an  untoward  combination  of  cir- 
cumstances which  he  cannot  explain,  or  from  the  misapprehension,  or 
direct  perjury  of  witnesses.  Yet  the  risk  must  be  incurred  in  both 
cases,  unless  we  abandon  altogether,  in  the  last  instance,  the  prosecution 
for  crimes  ;  and  in  the  first,  all  advantage  to  be  drawn,  in  any  shape, 
from  the  best  source,  the  acts  and  confessions  of  the  party  accused  :  and 
all  that  can  be  required  in  a  good  system  of  procedure,  is  to  put  these 
in  such  a  form  as  will  insure  authenticity,  and  guard  against  error,  in- 
timidation, or  the  effects  of  false  hopes.  It  is  believed  this  has  been 
done.  The  prisoner  is  allowed  the  assistance  of  counsel  ;  he  may  ex- 
amine the  depositions  and  question  the  witnesses  against  him,  before  he 
is  called  on  to  answer  the  interrogatories  that  are  to  be  propounded  to 
him  :  the  form. of  these  is  prescribed  by  law.  He  is  informed  that  he 
cannot  be  forced  to  answer  them,  but  he  is  admonished  that  silence  or 
falsehood  must  be  a  circumstance  that  will  operate  against  him.  His 
answers,  if  he  give  any,  are  reduced  to  writing  by  the  magistrate  ;  they 
are  submitted  to  his  perusal  and  correction,  and  he  signs  them  with 
such  additions  and  alterations  as  he  deems  proper  ;  and  if  after  all  any 
error  should  have  occurred,  means  are  afforded,  on  the  trial,  to  correct 
it  by  explanation,  and  by  the  examination  of  witnesses,  before  an  im- 
partial jury. 

The  next  step,  after  examination,  is  to  discharge,  remand,  bail,  or 
commit  the  prisoner.  The  first  is  the  duty  of  the  magistrate,  when 
the  evidence  adduced  by  the  prosecution  is  not  such  as  leaves  on  the 
mind  a  belief  that  the  crime  has  been  committed,  or  that  the  prisoner 
has  been  guilty  of  it.  This  being  only  a  preparatory  proceeding,  the 


216  INTRODUCTORY  REPORT  TO 

magistrate  is  directed  not  to  require  such  proof  as  would  justify  a  con- 
viction :  his  duty,  in  this  respect,  is  precisely  pointed  out.  If  there  be 
positive  evidence,  directly  charging  the  prisoner  with  the  commission 
of  the  offence,  although  he  may  produce  contradictory  proof,  the  ma- 

§istrate  cannot  discharge,  the  task  of  weighing  the  exculpatory  evi- 
ence  being  reserved  for  the  jury  on  the  trial.  When  the  evidence  is 
circumstantial  only,  and  does  not  bring  the  mind  to  a  belief  of  guilt,  the 
defendant  must  be  discharged  ;  but  in  this  case,  it  is  a  belief  only,  not 
a  firm  conviction  of  guilt  that  is  required,  by  which  is  meant,  that  the 
rule  laid  down  for  guiding  the  conscience  of  a  juror  on  the  trial  must 
be  reversed  as  respects  that  of  the  magistrate  on  the  question  of  dis- 
charging him.  In  order  to  convict,  the  juror  must  have  no  doubt  of 
the  prisoner's  guilt ;  to  discharge  him,  the  magistrate  must  have  none 
of  his  innocence.  The  result  of  an  examination  may  be  such  as  to 
show  that  other  proof,  within  the  reach  of  the  magistrate,  may  be  re- 
quired ;  in  which  case  the  prisoner  is  remanded,  or  sent  back  to  the 
custody  of  the  officer  by  whom  he  was  arrested,  or  to  the  prison  in 
which  he  was  confined  ;  and  at  a  proper  and  designated  period  he  is 
again  brought  up,  and  the  examination  proceeds.  If  the  magistrate  be 
not  convinced  of  the  defendant's  innocence,  he  must  either  commit  him 
to  prison  or  take  bail  for  his  appearance,  and  the  performance  of  this 
duty  is  one  in  which  the  highest  confidence  is  necessarily  placed  in  the 
discretion  of  the  magistrate.  The  nature  of  the  contract  of  bail  is  too 
well  known  to  need  any  explanation.  Its  theory  was  to  place  the  ac- 
cused in  the  watchful(a)  care  of  persons  who  have  confidence  in  him, 
and  who  are  interested  in  preventing  his  escape  by  the  fear  of  losing 
the  penalty  of  the  bond  ;  and  it  was  also  thought  that  the  confidence  re- 
posed in  him  by  his  sureties  was  such  proof  of  good  character  as  form- 
ed a  presumption  that  he  was  not  guilty  ;  but  experience,  in  many  cases, 
shakes  the  ground-work  of  this  theory.  The  bail  may  always  be  in- 
demnified when  the  defendant  is  wealthy  and  conscious  of  guilt  ;  and 
the  confidence  is  generally  reposed  more  in  his  means  than  his  char- 
acter. Hence,  it  is  apparent,  that  where  bail  is  a  matter  of  right,  the 
defendant  can  always  change  the  penalty  of  the  law  into  expatriation, 
and  a  pecuniary  fine  to  the  amount  of  the  bond.  Therefore  the  law, 
while  it  allows  bail  in  cases  of  doubt  or  in  offences  where  these  conse- 
quences would  be  a  sufficient  punishment,  ought  in  those  of  a  higher 
nature,  and  where  the  proof  is  strong,  to  secure  the  appearance  of  the 
party  by  other  means.  Unfortunately  the  framers  of  our  constitution 
have  restricted  legislation  on  this  subject  within  very  narrow  bounds, 
and  on  one  construction  have  taken  it  away  altogether,  if  we  should,  as 
I  cannot  but  hope  we  shall,  abolish  the  punishment  of  death.  The  con- 
stitution declares,  that  "all  prisoners  shall  be  bailable  by  sufficient  se- 
curities, except  for  capital  offences  where  the  proof  is  evident  or  the 
presumption  great."  On  the  construction  I  have  adopted,  the  magis- 
trate may  refuse  bail  where  the  "proof  is  evident  or  the  presumption 
strong "  in  offences  which,  in  the  time  of  making  the  constitution, 
were  capitally  punished :  these  were  murder,  rape,  exciting  insurrec- 
tion among  slaves,  and  stabbing  or  shooting  with  intent  to  murder. 
But  that  in  all  other  cases  he  is  bound  to  take  sufficient  bail.  Nor  can 

(a)  The  French  word  surveillance  expresses  the  idea  I  mean  to  convey,  better  than  even 
the  periphrase  I  am  forced  to  use,  for  want  of  a  correspondent  word  in  our  language. 


THE  CODE  OF  PROCEDURE.  217 

any  legislative  provision,  except  perhaps  that  of  making  the  offence  ca- 
pital, enlarge  the  constitutional  restriction.  1  express  myself  hesitating- 
ly, because  I  am  not  sure  what  the  courts  would  say  on  this  question  ; 
whether  the  constitution  intended  such  cases  as  were  then  capital,  or 
those  which  the  legislature  might  afterwards  declare  to  be  such,  or 
whether  when  the  offence  ceases  to  be  punished  by  death,  the  constitu- 
tional rule  with  regard  to  bail  remains  unchanged.  This  restriction 
on  the  powers  of  the  legislature  I  consider  unfortunate.  A  high- 
way robber  arrested  with  his  pistol  at  the  traveller's  breast — a  forger 
taken  in  the  act  of  passing  or  making  his  false  bills — every  other  offen- 
der, be  his  guilt  ever  so  atrocious,  or  the  proof  of  it  ever  so  apparent, 
must  be  let  out  on  bail,  and,  if  he  has  secured  the  means  of  indemnify- 
ing his  sureties,  may  change  the  punishment  directed  by  law,  fora  fine 
and  expatriation  or  concealment.  Constitutionally,  therefore,  the  magis- 
trate, could  be  invested  by  the  code  with  the  discretionary  power  to  bail 
or  not  to  bail  in  but  few  cases,  and  on  one  construction,  as  we  have  seen, 
(capital  punishment  being  abolished)  in  none.  There,  is  however,  no 
such  restraint  upon  his  discretion  as  to  the  amount  of  the  security  ;  and 
this  being  the  only  remedy  for  the  evil,  great  pains  have  been  taken  in 
the  framing  of  rules  for  the  guidance  of  the  magistrate  in  the  perform- 
ance of  this  important  duty.  If  there  be  any  occasion  in  which  it  is 
proper  for  the  legislator  to  declare  what  he  expects  from  the  judgment, 
as  well  as  what  he  commands  from  the  obedience,  of  a  functionary  of 
the  law,  it  is  the  one  now  under  consideration  ;  because  the  magistrates, 
who  are  to  perform  the  duty,  are  commonly  unused  by  previous  habit 
or  professional  education  to  the  consideration  of  the  questions  to  which 
it  gives  rise  ;  and  because  of  the  high  importance  of  the  due  exercise  of 
this  discretion,  as  well  to  the  public  as  to  the  individuals  more  imme- 
diately concerned.  There  are  those,  however,  who  consider  that  the 
law  should  do  nothing  but  command,  and  that  its  commands  should  al- 
ways be  sanctioned  by  some  penalty  for  disobedience.  The  arguments 
which  enforce  this  doctrine  seem  to  be  founded  on  the  idea  that  there 
is  some  paramount  power,  even  superior  to  that  of  a  constitutional  law, 
which  limits  legislative  power  by  certain  rules  of  form  as  well  as  of 
moral  duty  in  the  exercise  of  its  functions.  Utility  prescribes  the  last, 
but  from  what  source  is  the  first  derived  ?  We  feel  that  there  is  an  ob- 
ligation not  to  enjoin  the  performance  of  immoral  acts,  and  we  are  at 
no  loss  to  discover  the  source  of  this  duty.  But  when  we  are  told, 
you  are  to  prescribe  nothing  that  you  cannot  or  do  not  enforce  by  a 
penalty,  we  must  seek  in  vain  for  some  good  reason  for  the  maxim. 
The  lawgiver  cannot  foresee  the  circumstances  of  every  case,  and  if  he 
could  foresee,  he  could  not  describe  them  ;  he  must,  therefore,  give 
general  rules,  and  trust,  within  certain  limits,  to  the  discretion  of  the 
judge,  the  power  to  modify  and  adapt  them  to  suit  particular  cases ; 
that  is  to  say,  he  must  delegate  that  part  of  his  duty  which  he  cannot 
perform  himself;  and  in  making  this  transfer,  it  would  seem  not  only 
right  but  highly  useful  to  give  the  rules  and  lay  down  the  principles 
according  to  which  he  desires  it  to  be  exercised.  This  cannot  be  done 
by  positive  command,  because  it  is  to  operate  on  the  mind  and  direct 
the  judgment,  not  the  action  ;  and  as  this  is  a  delegation  of  discretion- 
ary power,  it  would  be  absurd  to  annex  a  penalty  to  an  honest,  although 
improper  exercise  of  it,  provided  the  limits  of  the  discretion  were  not 
exceeded.  To  illustrate  this  reasoning  by  an  example  drawn  from  the 
2  C 


218  INTRODUCTORY  REPORT  TO 

part  of  the  code  which  is  in  question — the  magistrate,  in  admitting  ta 
bail,  is  directed,  in  general  terms,  so  to  apportion  the  amount  as  not  to 
suffer  the  wealthy  offender  to  escape  by  the  payment  of  a  pecuniary 
penalty,  nor  to  render  the  privilege  useless  to  the  poor  ;  and  he  is  told 
that  this  power  is,  in  its  exercise,  one  of  the  most  delicate  and  import- 
ant functions  of  his  office,  and  he  is  apprized  that  his  sound  discretion 
is  to  direct  it.  It  is  clear  that  here  there  can  be  neither  positive  com- 
mand, nor  penalty  for  its  breach  ;  if  there  were,  it  would  no  longer  be 
discretion.  Yet  can  it  reasonably  be  said,  that  legislation  derogates 
from  its  dignity,  or  performs  a  superfluous  task  when  it  points  out 
to  the  magistrate  the  objects  he  ought  to  have  in  view,  and  the  princi- 
ples by  which  he  is  to  be  guided,  in  order  to  attain  it  ?  But  the  whole 
duty  is  not  left  to  the  discretion  of  the  magistrate.  Whatever  could  be 
foreseen,  and  provided  for,  by  that  of  the  law,  is  reduced  to  positive  pre- 
cept, and  its  breach  incurs  the  penalty  attached  to  disobedience.  Thus, 
where  the  punishment  is  fine,  the  bail  must  exceed  the  maximum  of  the 
penalty  ;  where  it  is  simple  imprisonment,  one  rule  is  fixed  ;  where 
the  imprisonment  is  in  the  penitentiary,  another  ;  other  rules  are  laid 
down  for  apportionment  in  other  particular  cases  ;  and  the  discretion 
of  the  judge  is  reduced  in  this,  as  it  has  been  the  object  to  do  in  every 
part  of  this  code,  to  the  strictest  limits,  within  which  it  can  be  exercis- 
ed consistently  with  justice.  Some  of  these  rules  and  restrictions  are 
new  ;  others  are  conformable  to  present  practice  ;  but  all  are  for  the  first 
time  reduced  to  the  form  of  statutory  legislation. 

The  bail  being  completed,  the  prisoner  is  suffered  to  remain  at  large 
until  the  trial  ;  but  provision  is  made,  that  for  the  security  of  the  bail, 
they  may,  at  any  time,  exonerate  themselves  by  his  surrender,  and  the 
particular  mode  of  doing  this  is  prescribed. 

If  sufficient  bail  be  not  offered,  or  if  the  case  be  one  in  which  the 
magistrate  rightfully  refuses  to  receive  it,  the  prisoner  must  be  com- 
mitted to  prison,  to  abide  the  event  of  his  trial  if  he  be  not  before  that 
time  bailed  or  discharged  by  the  judge  of  a  superior  tribunal,  or  habeas 
corpus.  The  order  for  commitment  is  directed  to  be  in  writing  ;  its 
form  and  essential  parts  are  prescribed,  as  well  as  the  mode  in  which 
it  is  to  be  executed  ;  and  all  the  means  that  experience  or  reflection 
could  suggest,  have  been  adopted  to  prevent  the  discharge  of  the  pris- 
oner, which  so  frequently  happens  from  formal  defects  in  the  warrant, 
while  every  requisite  security  against  abuse  and  oppression  have  been 
carefully  provided.  After  commitment,  the  prisoner  may  be  bailed  or 
discharged,  if  the  nature  of  his  case  permit  it.  But  the  inferior  magis- 
trate has  no  other  agency  in  this  proceeding  than  to  furnish  all  the 
evidence  of  that  which  was  had  before  him  to  the  judge  before  whom 
the  prisoner  may  be  brought,  on  the  return  of  the  writ  of  habeas  cor- 
pus ;  to  the  chapter  on  which  subject,  the  legislature  is  referred  for  a 
minute  detail  of  the  duties  and  rights  of  all  parties  and  agents,  from  the 
judge  who  decides,  to  the  prisoner  whose  case  is  before  him  ;  and  with 
this  ends  the  provisions  necessary  for  securing  the  appearance  of  the 
defendant  at  the  trial,  by  which  his  guilt  or  innocence  is  to  be  ascertain- 
ed, and  at  the  judgment,  by  which  it  is  to  be  proclaimed.  In  framing 
this  part  of  the  system,  it  has  never  been  forgotten,  that  the  guilty 
were  to  be  brought  to  punishment  with  as  little  inconvenience  as  possi- 
ble to  the  innocent ;  and  that  no  presumption  or  other  evidence  of 
crime  could,  before  trial  and  conviction,  justify  any  thing  more  than 


THE  CODE  OF  PROCEDURE.  219 

necessary  restraint.  With  this  view  a  reverent  eye  has  constantly  been 
kept  on  those  admirable  provisions  for  the  security  of  personal  liberty 
which  are  to  be  found  in  the  laws  of  England,  which  deserve  the  grati- 
tude as  well  as  the  admiration  of  the  world.  Institutions  which  are 
every  day  extending  their  influence  over  the  happiness  of  mankind, 
and  which  will  prove  a  more  lasting  and  honourable  monument  of  the 
wisdom,  justice  and  greatness  of  the  nation  from  whose  jurisprudence 
they  are  drawn,  than  any  which  their  splendid  victories,  their  power, 
their  wealth,  or  even  their  science,  could  erect.  Of  these  institutions 
the  writ  of  habeas  corpus  is  that  which  applies  to  this  part  of  our  sub- 
ject. The  idea  of  this  remedy  is  to  be  found  in  the  Roman  law  ;  but 
there,  as  well  as  in  the  common  law  of  England,  it  was  ineffectual,  un- 
til the  great  statute,  of  that  name,  gave  it  the  essential  features  to  which 
it  owes  all  its  utility.  These  features  have  been  rendered  more  definite, 
new  provisions  and  penalties  have  been  added, and,  I  think, it  may  now  be 
asserted  with  truth,  that  individual  liberty  can  suffer  no  restraint,  which, 
under  this  law,  will  not  find  an  easy,  prompt,  and  unexpensive  remedy. 

In  reviewing  the  duties  of  the  examining  magistrate,  among  them 
should  have  been  stated  that  of  taking  an  obligation  from  witnesses, 
under  a  penalty,  to  secure  their  appearance  at  the  trial,  and  of  commit- 
ting to  prison  such  as  refuse  to  enter  into  that  obligation.  Analogous 
to  this  is  a  proceeding  which,  although  an  invasion  of  personal  liberty, 
is  practised  in  most  countries,  and,  I  think,  justified  by  the  same  rea- 
soning which  shows  the  right  of  taking  private  property,  or  coercing 
personal  service,  for  the  public  safety.  When  one  who  is  a  necessary 
witness,  in  a  prosecution  for  an  offence  punishable  by  imprisonment 
for  life,  is  not  a  householder,  and  consequently  wants  one  principal 
tie  to  prevent  his  departure,  and  has  no  friends  or  connexions  who  will 
become  bound  for  his  appearance,  he  may  be  detained  in  custody  until 
the  trial;  but  in  this,  and  in  the  Code  of  Prison  Discipline,  it  is  specially 
provided,  that  he  be  properly  and  comfortably  supported  at  the  public 
expense  ;  that  he  suffer  no  degrading  or  contaminating  associations 
while  detained  ;  that  he  be  allowed  every  indulgence,  as  to  occupation, 
amusement  and  society,  which  the  good  order  of  the  house  (for  the 
place  of  his  detention  is  not  characterized  as  a  prison)  will  allow,  and 
that  when  discharged,  full  compensation  be  made  for  the  loss  he  has 
incurred.  The  duties  of  the  examining  magistrate  end,  with  transmit- 
ting to  the  proper  officer  of  the  court  having  cognizance  of  the  case,  all 
the  proceedings  which  have  been  had  before  him,  including  the  origin- 
al examination  as  well  of  the  party  as  of  the  witnesses  ;  and  here  opens 
a  new  course  of  proceeding,  contained  in  the  second  title  of  this  book. 
It  treats  of  the  proceedings  subsequent  to  the  commitment  or  bailing  of 
the  prisoner.  The  first  chapter  details  the  manner  in  which  the  ap- 
pearance, as  well  of  the  party  as  the  witnesses,  is  to  be  enforced,  which, 
as  it  differs  little,  except  it  is  hoped  in  precision  and  certainty,  from 
the  mode  now  in  use,  needs  only  a  reference  to  the  chapter. 

The  second  contains  some  regulations  which  it  was  thought  would 
introduce  order  in  the  arrangement  of  the  different  cases  preparatory 
to  the  indictment  or  information.  Among  them  is  one  which  obliges 
the  prosecuting  officer  to  designate,  before  the  meeting  of  the  grand 
jury,  on  a  copy  of  the  calendar  furnished  to  him  for  that  purpose,  all 
such  cases  of  misdemeanor  as  he  may  choose  to  prosecute  by  informa- 
tion ;  and  the  papers,  in  relation  to  these  cases,  are  not  sent  to  the 


J20  INTRODUCTORY  REPORT  TO 

grand  jury.  This  is  done,  as  well  to  avoid  any  interference  between 
the  two  accusing  powers,  as  to  ensure,  on  the  part  of  the  prosecuting 
attorney,  the  performance  of  his  duties.  For  this  officer,  after  having 
designated  those  cases  in  which  he  will  proceed  without  the  interven- 
tion of  the  grand  jury,  is  bound  to  file  his  information  before  the  end 
of  the  term  ;  and  the  court  being  made  acquainted  with  them,  as  the 
cases  which  are  before  him,  he  cannot,  if  so  inclined,  favour  any  one 
by  delay  in  the  prosecution,  or  throw  off  the  reproach  of  neglect  upon 
the  grand  jury.  And  that  body  being  obliged,  as  their  exclusive  duty, 
to  inquire  into  all  cases  of  crime,  and  all  those  of  misdemeanor  not 
selected  by  the  public  prosecutor,  it  follows  that  every  accusation  must 
be  disposed  of  in  one  or  the  other  mode. 

The  third  chapter  is  an  important  one.  It  relates  to  the  organization 
and  duties  of  the  grand  jury.  This  institution  is  a  favourite  one  in 
England  and  in  the  United  States.  But  although  I  consider  its  advan- 
tages outweigh  the  objections  to  which  it  is  liable,  and  have,  therefore, 
preserved  for  it  a  place  in  the  system,  yet  I  cannot  but  suspect  that  it 
owes  much  of  its  popularity  to  its  name,  and  to  the  association  which 
connects  it  with  that  invaluable  blessing  to  a  free  country,  the  trial  by 
jury.  Some  part  of  its  utility,  too,  is  traditional  only.  In  the  party 
questions,  which  at  different  times  have  divided  the  people  of  England, 
and  which  very  rarely  ended  without  enlisting  the  judiciary  power  on 
that  side  which  was  espoused  by  the  crown,  it  was  sometimes  a  protec- 
tion against  the  combination  of  royal  and  judicial  oppression,  and  would 
have  been  more  frequently  so  if  there  had  been  any  means  of  securing 
an  impartial  selection  of  its  members.  It  is  not  my  intention  to  pre- 
sent a  history  of  this  institution,  or  a  detail  of  its  advantages  or  incon- 
veniences, in  its  origin,  progress,  or  present  state,  in  the  country  from 
which  we  have  inherited  it.  It  will  be  sufficient  to  offer  the  objections 
to  its  establishment  here,  which  have  occurred  to  me,  and  the  reasons 
in  its  favour,  which  I  have  thought  sufficient  to  countervail  them. 
With  such  an  admirable  contrivance  for  the  security  of  innocence  against 
unjust  prosecutions  as  the  trial  by  jury,  where  unanimity  is  required 
for  conviction,  any  intermediate  examination  between  that  made  by  the 
committing  magistrate  and  the  final  trial,  would  seem  an  obstruction  to 
the  course  of  justice,  of  which  the  necessity,  or  even  the  convenience, 
is  not  very  apparent.  The  secrecy,  too,  of  that  examination  and  the 
precautions  taken  to  prevent  the  slightest  responsibility  resting  on  any 
one  of  those  by  whom  it  is  made,  it  might  be  argued,  give  a  chance  for 
favouritism,  or  undue  influence,  to  interpose  in  favour  of  those  whose 
guilt  would  be  apparent  on  a  public  trial ;  while,  on  the  other  hand,  it 
might  be  said  that  witnesses,  according  to  the  usual  practice,  being 
heard  only  to  charge  the  defendant,  and  heard  in  secret,  he  is  depriv- 
ed of  the  advantage  secured  to  him  before  the  magistrate  of  showing 
his  innocence  by  countervailing  proof  ;  and  thus,  in  all  cases  originat- 
ing by  complaint  to  the  grand  jury,  he  would  be  subject  to  commit- 
ment and  trial,  on  the  evidence  of  circumstances  which  he  might  have 
fully  explained  had  the  examination  been  publicly  had  before  a  magis- 
trate. To  this  it  may  be  added,  that  grand  juries  are  very  rarely,  if 
ever,  composed  of  men  having  such  a  knowledge  of  the  law  as  will 
enable  them  to  determine  what  evidence  ought  to  be  admitted,  to  what 
credit  it  is  entitled,  or  whether  the  facts  it  discloses  amount  to  an  of- 
fence ;  and  that  this  ignorance  of  their  duties,  or  an  inattention,  which 


THE  CODE  OF  PROCEDURE.  221 

is  worse,  frequently  causes  them  to  mistake  or  disregard  the  duties  of 
their  office,  and  assume  the  cognizance  of  matters  with  which  they  have 
no  concern  ;  sometimes  censuring  the  conduct  of  political  opponents  ; 
sometimes  lending  their  influence  to  promote  party  views.  These 
objections  are  weighty,  and  some  of  them  not  ill-founded.  But  after 
the  fullest  consideration,  I  thought  that  those  to  which  satisfactory 
answers  could  not  be  given,  might  be  obviated  by  alterations,  which 
would  make  none  in  the  general  outline  of  the  institution  ;  and, 
therefore,  for  the  following  reasons  I  adopted  it  with  the  modifications 
contained  in  the  code. 

1.  First,  because  it  participates  largely  in  that  prominent  characteristic 
which  distinguishes  the  trial  by  jury  (a),  of  spreading  general  informa- 
tion, and  a  particular  acquaintance  with  the  practical  operation  of  the 
constitution  and  laws;  of  creating  an  attachment  to  the  principles  on 
which  they  are  founded,  and,  by  the  periodical  performance  of  an  im- 
portant function,  promoting  the  happiness  of  the  individual  by  a  sense 
of  self-importance,  and  that  of  the  public,  by  a  constant  vigilance  over 
its  peace.     It  might,  if  necessary,  easily  be  shown  that  each  of  these 
effects  will  be  produced  by  the  frequent  exercise  of  the  duties  of  a  grand 
juror;  and  all  of  them  are  objects  of  the  highest  consequence  in  legisla- 
tion.     For,  in  a  government  created  for  the  common  good  of  all  its 
citizens,  that  organization  of  any  department  is  certainly  to  be  prefer- 
red, which,  while  it  is  equally  well  calculated  with  any  other,  for  the 
performance  of  the  duties  for  which  it  is  particularly  intended,   also 
opens  new  sources  for  individual  happiness,  diffuses  knowledge,  fosters 
an  attachment  to  true  principles,  and  adds  stability  to  the  government 
of  which  it  is  a  part.      It  has  appeared  to  me,  that  a  want  of  attention  to 
such  considerations  is  a  common  fault  in  the  legislation  of  our  country. 
We  shape  our  laws  to  fit  the  principal  end  which  is  proposed,  without 
sufficiently  examining  whether  the  same  object  could  be  obtained  by 
means  that  produce  other  collateral  effects  of  equal  or  perhaps  of  greater 
importance,   and  avoid  dangers  which,  in  our  eagerness  to  attain  some 
doubtful  good  by  a  straight-forward,  off-hand  legislation,   have  totally 
escaped  our  attention.     Thus,  to  raise  a  revenue  for  some  useful  purpose, 
we  license  gambling-houses  ;  to  promote  education,  and  provide  for  the 
building  of  churches,  we  establish  lotteries  ;  to  avoid  the  expense  of 
erecting  a  penitentiary,  we  incur  that   of  supporting   our   convicts  in 
idleness,  and  put  some  of  our  citizens  to  death,  that  we  may  impress  on 
the  minds  of  others  the  great  truth  that  killing  is  unlawful.    We  do  this, 
without  sufficiently  inquiring  whether  the  requisite  revenue  might  not 
be  obtained  by  some  other  and  better  means  than  giving  the  sanction  of 
law  to  the  worst  of  vices;  whether  a  purer  source  could  not  be  found, 
from  which  to  draw  the  means  of  supporting  religious  and  scientific 
education,  than  one  that  corrupts  morals,  encourages  idleness,  and  leads 
the  poorer  classes  to  poverty  and  vice;  whether  the  crimes  which  are 
fostered  in  the  vicious  association  of  confinement,  without  labour,  are 
not  infinitely  more  expensive  to  the  community  than  the  most  cosily 
house  of  labour  ;  and  whether  shedding  man's  blood  is  the  most  effectual 
way  of  showing  that  it  ought  not  to  be  shed. 

2.  Independently  of  this  collateral,  but  highly  important  advantage,  at- 
tached to  the  institution  of  grand  juries,  it  was  adopted,  secondly,  because 

(a)  See  Report  on  the  Plan  of  a  Penal  Code. 


222  INTRODUCTORY  REPORT  TO 

it  was  already  established,  and  it  has  been  my  uniform  practice  to  alter 
no  part  of  the  system  but  such  as  could  be  clearly  shown  to  be  defective 
or  inconsistent  with  other  parts  of  the  plan.  Whether  the  present  is 
of  this  character  must  depend  upon  an  examination  of  the  objections 
which  have  been  stated.  These  are  in -substance,  that  the  intervention 
of  a  second  accusing  power,  between  the  commitment  by  the  magistrate 
and  the  trial,  is  a  useless  piece  of  machinery  in  penal  law;  that  from  its 
particular  organization  it  is  cumbrous,  and  from  its  secrecy  dangerous; 
that  it  may,  without  responsibility,  protect  guilt  and  vex  innocence;  and 
that  the  ignorance  of  its  members  frequently  leads  them  into  erroneous 
ideas  of  their  power,  which  creates  confusion  in  the  administration  of 
justice. 

The  error  of  the  first  objection  lies  in  supposing  that  the  commit- 
ment of  the  magistrate,  in  all  cases,  contains  such  an  exposition  of 
the  circumstances  and  nature  of  the  oS'ence  as  would  enable  the  party 
to  prepare  for  his  defence,  by  knowing  exactly,  not  only  with  what 
crime  he  was  charged,  but  also  when,  where,  and  in  what  manner  he  is 
accused  of  having  committed  it.  But  this  is  far  from  being  the  case. 
If  the  ministry  of  the  grand  jury  be  dispensed  with,  that  of  some  other 
body  of  men,  or  of  some  officer,  must  be  substituted  for  the  performance 
of  this  duty.  If  it  be  vested  in  a  known  officer,  or  a  permanent  body, 
he  or  they  being  previously  known,  will  be  subject  to  the  approaches  of 
influence  in  all  its  seducing  forms,  for  the  purposes  of  favour  or  oppress- 
ion. Whereas  the  grand  jury,  selected  by  judges  totally  unconnected 
in  any  other  manner  with  the  proceeding,  cut  of  a  very  limited  number, 
taken  by  lot  immediately  before  the  session  of  the  court,  are  out  of  the 
reach  of  any  attempt  to  seduce  or  intimidate  them.  If,  to  obviate  this,  and 
at  the  same  time  the  next  objection,  that  the  grand  jury  is  inconveniently 
great,  it  should  be  said,  draw  your  accusing  judges  also  by  lot,  or  let  them 
be  appointed  by  the  executive  immediately  before  they  enter  on  their 
duties,  but  let  the  number  be  less:  it  is  answered,  this  expedient  gives 
us  still  a  grand  jury.  If  appointed  by  the  executive,  you  do  not  take 
away  the  danger  of  an  undue  influence;  you  only  change  the  person  to 
whom  it  may  be  addressed.  If  you  take  them  by  lot,  in  the  manner 
proposed  by  the  code,  the  only  question  is,  whether  the  substitution  of 
any  smaller  number  for  that  now  required  will  be  attended  with  any 
advantage  sufficiently  great  to  justify  the  change.  It  is  thought  not. 
If  no  great  reduction  be  made,  the  difference  will  scarcely  be  percepti- 
ble in  the  mode  of  proceeding.  If  the  number  be  few,  some  advantage 
may  be  gained  in  celerity;  but  a  greater  lost  in  the  want  of  information, 
and  in  the  freer  scope  given  to  xthe  influence  of  favour  or  animosity 
among  a  few.  The  object  of  this  institution  being,  not  only  to  make  ac- 
cusations of  such  infractions  of  the  law  as  have  been  prosecuted  before 
the  examining  magistrate,  but  the  jurors  being  individually  bound  to 
make  inquisition  into  all  such  as  they  have  reason  to  think  have  been 
committed  in  the  district  for  which  they  are  assembled,  it  follows,  that 
a  reasonable  suspicion,  entertained  by  one  of  the  members  and  com- 
municated with  the  circumstances  on  which  it  is  founded  to  his^fellows, 
will  be  sufficientto  ground  an  inquiry;  for  which  purpose  they  are  vested 
with  powers  to  send  for  and  examine  witnesses.  This  object  will 
obviously  be  better  attained  by  a  numerous  than  a  small  body. 

The  objection  drawn  from  the  secrecy  of  the  proceedings  before  the 
grand  jury,  is  one  that  comes  in  a  more  imposing  shape  than  any  other,  in 


THE  CODE  OF  PROCEDURE.  223 

a  country  where  publicity  in  every  department  is  justly  considered  as  the 
greatest  security  for  good  conduct  in  those  who  direct  them.  Yet  there 
are  reasons  why  I  should  hesitate  to  remove  the  veil  that  has  been 
drawn  over  the  proceedings  of  the  grand  jury  room.  To  appreciate 
these  reasons,  we  must  consider  the  constitution  of  this  body  and  the 
nature  of  their  duties.  The  members  are  not  appointed  or  chosen  to 
perform  functions  of  an  office,  but  designated,  as  we  have  seen,  by  lot 
to  perform  a  service,  an  onerous  one,  which  they  have  not  courted, 
and  to  which  they  have  not  been  called  by  an  appointment  which  they 
might  accept  or  refuse.  It  would  seem  unjust,  therefore,  to  expose  an 
individual,  thus  performing  an  involuntary  duty,  to  the  odium  or  suspi- 
cion inseparably  attached  to  it,  for  any  erroneous  but  honest  expression 
of  his  opinion  ;  and  against  the  prosecution  for  corrupt  or  other  illegal 
conduct,  the  oath  of  secrecy  taken  by  his  fellows  is  no  protection.  It  must 
be  remembered,  too,  that  the  honest  and  useful  prejudice  against  secret 
informers,  although  it  may  have  contributed  to  give  force  to  this  objec- 
tion, has  in  reality  no  application  to  the  proceedings  before  a  grand  jury. 
When  any  member  of  this  body  prefers  an  accusation,  he  becomes  a 
witness,  his  deposition  is  taken,  and,  with  that  of  every  other  witness,  is 
handed  into  court.  The  secrecy  is  not  in  the  accusation,  or  in  the  name 
of  the  witness  who  makes  it,  but  it  is  confined  to  the  opinion  which 
each  juror  delivers  as  to  the  weight  which  the  evidence  ought  to  have. 
To  make  this  public,  would  be  to  deter  the  timid  from  the  discharge  of 
an  important  duty,  by  exposing  him  to  the  animosity  of  those  who 
might  be  affected  by  it,  and  could  be  attended  with  no  advantage  what- 
ever. If  the  office  were  an  elective  one,  it  would  be  important  for  the 
people  to  know  how  the  officer  had  performed  his  duties;  if  it  were  one 
held  by  appointment,  the  same  information  would  be  useful  to  the 
executive  or  appointing  power;  but  in  the  case  before  us,  responsibility, 
except  for  offences,  does  not  and  need  not  exist;  and  where  there  is  no 
responsibility,  publicity  can  be  of  little  use. 

The  want  of  general  knowledge,  and  especially  an  ignorance  of  the 
law  in  the  greatest  number  of  jurors,  is  also  alleged  as  a  serious  objec- 
tion against  their  fitness  to  determine  whether  a  citizen  shall  be  exposed 
to  the  risk  and  vexation  of  a  public  trial,  or  a  knave  shall  be  snatched 
from  the  conviction  that  would  probably  be  the  consequence  of  his 
trial  ;  and  it  must  be  confessed,  that  if  this  objection  be  at  all  well 
founded,  it  is  particularly  so  when  applied  to  a  system  like  the  present, 
in  which  the  jurors  are  taken  by  lot.  But  we  must  consider  that  the 
principal  duty  of  a  member  of  this  body  is  the  determination  of  mat- 
ters of  fact,  which  requires  nothing  more  than  the  exercise  of  a  plain 
sound  understanding,  a  knowledge  of  the  different  concerns  in  common 
life,  an  independent  spirit,  firmness  and  integrity,  acquirements  as 
probably  to  be  met  with  in  any  twenty  men,  who  might  be  selected 
from  three  times  that  number  presented  by  lot,  as  in  any  particular 
class  of  society.  Ignorance  of  the  law  must  certainly  be  expected. 
As  our  laws  now  stand,  this  objection  might  be  made  with  nearly  the 
same  number,  chosen  with  the  greatest  care  from  the  whole  community 
among  those  who  are  liable  to  this  duty.  It  is  obviated,  in  a  great 
degree,  by  several  provisions  :  the  duties  of  grand  jurors  are  specially 
pointed  out;  and  that  part  of  the  code  which  contains  them,  is  direct- 
ed to  be  read  to  them  and  a  copy  sent  to  their  chamber  :  the  written 
law,  upon  every  one  of  the  offences  on  which  they  are  to  decide,  is  also 


224  INTRODUCTORY  REPORT  TO 

laid  before  (hem  :  the  public  prosecutor  is  directed  to  give  them  his 
advice  on  all  the  cases  which  he  knows  from  the  calendar  will  claim 
their  attention,  and  on  all  other  points,  whenever  it  shall  be  required  ; 
and  any  further  doubts  they  may  entertain,  are  directed  to  be  cleared 
up  by  the  court.  With  these  precautions  to  avoid  error,  it  seems  al- 
most impossible  that  any  of  importance  should  be  incurred  ;  and  the 
necessity  of  resorting  to  these  sources  for  information,  will  every  day 
be  diminished  by  the  knowledge  of  the  laws  which  these  measures 
cannot  but  diffuse  among  the  people. 

One  other  inconvenience  remains  to  be  mentioned.  The  abuse  en- 
couraged by  the  courts,  and  readily  fallen  into  by  grand  juries, — that 
of  assuming  the  power  of  discussing  and  deciding  on  extra-judicial  and 
political  questions.  This  has  an  unhappy  effect,  particularly  in  a  popu- 
lar government,  where  party  spirit  is  so  apt  to  introduce  itself  into 
every  assembly,  to  mix  in  every  deliberation,  break  the  ties  of  friend- 
ship, relax  those  of  kindred,  embitter  social  intercourse,  madden  pub- 
lic discussion,  and  unless  restrained,  impress  its  character  on  legislation 
and  pervert  the  administration  of  the  laws.  The  greatest  of  these 
evils  would  be,  that  it  should  insinuate  itself  into  the  hall  of  justice  ; 
and.  as  far  as  positive  interdiction  can  go,  this  entrance  through  the 
chamber  of  the  grand  jury  has  been  closed.  The  grand  jury,  thus  or- 
ganized, is  exclusively  the  accusing  power  in  all  cases  of  crime,  and  in 
those  of  misdemeanor  concurrently  with  the  public  prosecutor,  of 
whom  there  is  one  appointed  for  each  court  of  criminal  jurisdiction, 
The  intervention  of  this  body  has  been  erroneously  called  a  double 
trial,  and  it  has  been  stigmatized  as  an  injustice  that  the  accused  has  not 
the  privilege  of  being  heard  before  them.  Although  the  answer  to  this 
objection  has,  in  some  measure,  been  anticipated,  yet  it  may  be  neces- 
sary to  add,  that,  until  the  indictment  be  found,  the  accusation  is  not 
complete,  consequently  there  is  nothing  to  answer,  and  nothing  to  try; 
and  when  it  is  found,  there  would  be  an  absurdity,  as  well  as  glaring 
injustice,  in  permitting  the  truth  of  the  accusation  to  be  tried  by  the 
same  body  that  had  just  preferred  it. 

It  is  hoped  and  believed,  that  in  the  chapters  describing  the  mode  of 
proceeding  in  the  grand  jury,  and  enjoining  the  duties  of  the  court  and 
the  several  officers  of  justice  in  relation  to  them,  many  things  will  be 
found  which  may  prove  useful  in  establishing  and  giving  certainty  to 
our  present  practice,  together  with  some  innovations  that  may  be  deemed 
improvements  on  the  system,  although  they  are  not  thought  of  sufficient 
importance  to  be  here  discussed.  The  assent  of  twelve  jurors  is  made 
necessary  for  finding  an  indictment,  but  that  of  a  majority  of  those  pre- 
sent is  sufficient  to  decide  incidental  questions.  The  act  of  accusation 
being  found,  must  be  delivered  into  the  hands  of  the  judge  in  open 
court,  who,  if  the  defendant  be  in  custody  or  on  bail,  shall  order  it  to 
be  filed  ;  but  if  he  be  at  large,  in  order  to  avoid  his  receiving  notice 
and  escaping,  the  judge  shall  issue  a  warrant  for  his  apprehension,  and 
keep  the  indictment  in  his  hands  until  the  arrest  be  made.  Freedom 
from  arrest,  during  the  term  of  his  attendance,  and  from  action  or  pro- 
secution for  any  thing  said  in  the  performance  of  his  duty,  excepting 
perjury  in  a  deposition  made  to  his  fellows,  is  secured  to  each  grand 
juror. 

A  chapter  is  devoted  to  the  form  and  substance  of  indictments  and 
informations — an  important  division;  for,  to  the  want  of  precision  in  our 


THE  CODE  OF  PROCEDURE.  225 

law  on  this  subject,  may  be  traced  the  numerous  instances  in  which 
men  evidently  guilty  have  escaped  punishment.  In  a  system  which 
admits  the  humane  maxim,  that  it  is  better  an  hundred  guilty  should 
escape  than  one  innocent  man  be  punished,  it  becomes  an  imperative 
duty  to  avoid  all  those  doubts  which  make  the  administration  of  crimi- 
nal justice  a  lottery,  with  so  many  chances  in  favour  of  guilt.  Every 
man,  who  has  attended  our  courts,  must  be  convinced  of  the  deleterious 
effects  of  this  uncertainty,  and  must  have  seen  the  reliance  that  is  placed 
upon  it  by  culprits  on  their  trials.  The  first  question  asked  of  their 
counsel,  especially  by  old  offenders,  is,  whether  he  can  find  no  flaw  in 
the  indictment ;  and  there  can  be  no  doubt  of  its  effect  in  multiplying 
crimes,  by  adding  one  more  to  the  many  hopes  of  impunity.  Every 
endeavour,  therefore,  has  been  made  for  giving  to  the  provisions  of 
this  chapter  such  a  character  as  will  make  it  secure  to  the  accused  every 
information  necessary  for  his  defence,  but  deprive  him  of  all  hopes  of 
escaping,  in  any  other  manner  than  by  a  verdict,  which  shall  declare  him 
innocent.  Among  the  first,  is  the  direction  for  stating  clearly  in  the  act 
of  accusation,  whether  indictment  or  information,  all  the  circumstances 
which  enter  essentially  into  the  description  of  the  offence  charged, 
the  place  where  it  was  committed,  and,  in  private  offences,  the  names 
of  those  to  whose  property,  person,  or  reputation,  the  injury  was 
offered.  To  render  mistakes  less  frequent,  and  secure  uniformity  in 
this  important  part  of  procedure,  forms  are  provided  in  a  subsequent  part 
of  the  work,  applicable  to  each  offence  ;  but  to  avoid  delay  in  the  few 
cases  in  which  these  forms  may  have  been  carelessly  departed  from,  those 
directions  which  may  be  considered  as  substantial  are  designated  and 
distinguished  from  those  which  are  formal  only;  the  latter  being  amend- 
able of  course,  and  the  former,  except  in  a  single  instance,  not  operating 
so  as  to  discharge  the  accused,  if  objected  to  either  before  or  after  trial ; 
that  single  exception  being  the  one  that  the  indictment  charges,  a  fact 
which  does  not  amount  to  an  offence.  In  every  other  case  the  indict- 
ment is  amendable  by  being  referred  again  to  the  grand  jury,  where 
necessary — and  the  cases  in  which  it  is  so,  are  pointed  out — giving  the 
party  always  time  to  answer  the  new  allegations.  A  proper  idea  of  all 
these  provisions  can  only  be  formed  by  a  perusal  of  the  chapters  which 
contain  them.  One  alteration,  however,  demands  particular  notice. 
In  no  cases  are  exceptions  to  form  more  frequent,  in  none  do  they  more 
effectually  defeat  the  ends  of  justice,  than  in  prosecutions  for  forgery, 
passing  counterfeit  bills,  and  other  offences  in  relation  to  instruments 
in  writing  ;  if  an  erroneous  denomination  be  given  to  the  instrument,  by 
calling  it  an  order  when  it  is  really  a  bill  of  exchange  or  a  promissory 
note,  or  if  the  tenor  of  the  writing  be  not  exactly  set  forth  in  the  indict- 
ment(a),  the  proceedings  are  set  aside,  and  under  some  circumstance  the 

(a)  To  any  one  who  has  attended  to  the  proceedings  of  criminal  courts,  it  would  be  un- 
necessary to  cite  instances  of  the  allegation  in  the  text.  One  of  rather  a  ludicrous  cast  lately 
occurred  in  England.  In  an  indictment  for  forgery,  a  stroke  of  the  pen,  which  occurred  in  the 
instrument,  had  not  been  copied  in  the  indictment.  The  piisoner  being  convicted,  his  coun- 
sel moved  in  arrest  of  judgment,  and  assigned  the  omission  of  this  stroke  for  cause.  The 
paper  and  the  indictment  were  handed  up  to  the  bench,  and  the  judge,  not  being  able  with 
the  naked  eye  to  discover  any  difference,  had  recourse  to  a  glass",  and  by  the  aid  of  a  strong 
magnifier  discovered  something  which  he  >aid  was  cither  a  tick  (a  word  of  which  I  do  not  pro- 
fess to  know  the  meaning)  or  a  letter,  which  he  would  not  or  could  not  determine,  but  sub- 
2  D 


INTRODUCTORY  REPORT  TO 

defendant,  although  his  guilt  has  been  ascertained  by  a  verdict,  is  dis- 
charged. These  consequences  are  avoided  by  a  simple  provision,  which 
has  been  alluded  to  in  the  Introductory  Report  to  the  Code  of  Crimes 
and  Punishments.  In  all  cases,  to  avoid  the  delay  arising  from  objections 
to  form,  whether  made  in  the  shape  of  motions  to  quash  the  indictment, 
to  set  aside  the  proceedings,  or  to  arrest  the  judgment,  a  copy  of  the 
indictment  is  directed  to  be  furnished  to  the  defendant,  and,  at  a  con- 
venient time  before  the  trial,  he  is  brought  into  court  and  informed,  that 
if  the  indictment  contains  any  defect  of  form  (and  what  are  deemed  to 
be  such  are  explained  to  him)  he  must  specify  them  by  a  day  desig- 
nated; but  if  he  fail  to  make  them  then,  he  will  for  ever  be  precluded. 
In  the  mean  time  he  has  counsel  assigned  to  him,  if  he  have  employed 
none.  After  the  period  for  deliberation  has  elapsed,  he  is  again 
called  on  for  his  exceptions  ;  if  he  make  any,  and  they  are  such  as  are 
designated  in  the  code  to  be  those  of  form  merely,  they  are  amended 
immediately  by  the  public  prosecutor;  if  of  substance,  the  indictment  is 
sent  back  to  the  grand  jury.  But  if  no  exception  be  then  made,  none 
will  afterwards  be  heard,  except  the  radical  defect  that  the  facts  charged 
do  not  amount  to  an  offence.  In  prosecutions  for  offences,  founded  on 
writings,  the  indictment  is  not  required  to  give  any  denomination  to 
the  instrument ;  it  is  not  called  a  note,  a  bill,  or  bond,  but  simply  an 
"instrument  in  writing,  of  which  a  copy  is  annexed."  By  this 
means  one  fruitful  source  of  error,  uncertainty  and  delay  is  avoided. 
Another,  to  which,  as  has  been  said,  this  species  of  prosecution  is  par- 
ticularly liable,  is  avoided  by  the  proceeding  just  detailed  :  the  indict- 
ment and  the  copy  of  the  instrument  being  served  on  the  defendant, 
when  he  is  brought  into  court  the  original  is  submitted  to  his  inspec- 
tion and  that  of  his  counsel;  time  is  given  to  compare  it  with  the  copy 
furnished  ;  and,  in  addition  to  the  notice  given  in  other  cases,  he  is  ap- 
prised that  if  he  means  to  make  any  exception  to  the  correctness  of  the 
copy  furnished,  he  must  do  it  in  the  time  limited  by  the  rule  before 
trial.  If  he  make  any  such  exception,  and  it  is  found  to  be  well  taken, 
the  copy  is  immediately  amended ;  and  it  is  not  until  all  difficulties  of 
form  are  thus  got  rid  of,  that  the  defendant  is  called  on  to  answer  to  the 
merits.  This  is  done  formally  in  open  court,  and  the  answer  can  only 
be  a  confession  or  denial  of  the  charge  ;  excepting  only,  the  plea  that 
the  defendant  has  before  been  acquitted  or  convicted  for  the  same  of- 
fence. A  refusal  to  answer,  or  any  indirect  or  evasive  answer,  is  con- 
sidered and  recorded  as  a  denial  of  the  charge.  As  but  one  mode  of  trial, 
consistently  with  this  code,  will  be  known  to  our  law,  the  useless  question, 
which  implies  an  option,  is  no  longer  to  be  put.  The  trial  by  jury  is  es- 
tablished as  the  only  one  that  can  be  resorted  to.  The  reasons  for  this  are 
so  obvious  and  are  so  fully  stated  in  the  Report  on  the  Plan  of  a  Penal 
Code,  made  to  your  predecessors  in  1822(«),  that  nothing  need  be  added 
to  show  the  importance  of  this  institution,  as  well  in  a  political  as  a  ju- 
dicial point  of  view.  A  striking  exemplification  of  the  views  contained 
in  that  Report,  has  lately  come  to  my  knowledge,  which  I  think  it  may 
be  proper  to  offer  in  this.  The  island  of  Ceylon,  inhabited  in  different 

rnitted  it  to  the  jury,  with  directions,  if  they  found  it  to  be  the  one  (I  forget  which )  to  convict, 
if  the  other  to  acquit ;  and  to  aid  in  the  determination  of  this  important  question,  he  handed 
them  Ms  glass— the  microscopic  powers  of  which  determined  them  in  favour  of  the  acquitting 
alternative — and  the  prisoner  was  discharged  :  if  the  judge's  glass  had  not  been  brought  into 
court,  or  had  been  of  a  lower  power,  he  would  have  been  hanged  !  !  ! 
(a)  Report  on  the  Plan  of  a  Penal  Code,  p.  10. 


THE  CODE  OF  PROCEDURE.  227 

proportions  by  Hindoos, Mahometans,  and  descendants  of  emigrants  from 
Siam,  Ava,  and  other  parts  of  the  eastern  continent  and  its  adjacent 
islands,  passed  successively  under  the  dominion  of  the  Portuguese,  Dutch 
and  English,  who  have  added  to  the  heterogeneous  mixture  of  inhabitants 
by  a  number  of  their  descendants,  springing  from  an  intercourse  with  the 
native  women.  The  English,  having  conquered  this  island  in  1796,  have 
ever  since  been  in  quiet  possession  of  this  valuable  colony.  For  the  ad- 
ministration of  justice,  the  Dutch  had  introduced  the  civil  law,  by  which 
the  country  was  governed  until  the  year  1811,  when  sir  Alexander 
Johnston,  chief-justice  of  the  island,  succeeded  in  the  bold  project  of  in- 
troducing the  trial  by  jury  into  the  criminal  courts  of  the  colony.  Let 
those  who  doubt  the  political  utility  of  this  institution — who  think  it 
fitted  only  for  the  people  of  highly  civilized  and  well-informed  nations — 
who  do  not  appreciate  its  power  in  spreading  information  and  elevating 
the  personal  and  national  character  ;  let  those,  and  they  are  not  few, 
who  have  considered  the  former  report  on  this  subject  as  an  effusion  of 
an  enthusiastic  veneration  for  a  vain  theory  ;  let  all  those  peruse  the 
following  authentic  account,  furnished  from  the  highest  authority,  and 
confess  the  almost  omnipotent  power  of  this  great  institution  in  reform- 
ing and  elevating  the  character,  overcoming  national  prejudices,  uniting 
the  most  discordant  materials,  diffusing  useful  knowledge,  purifying  the 
sources  of  justice,  and  demonstrating,  by  its  effects,  that  no  govern- 
ments are  so  strong  as  those  in  which  the  people  are  suffered  lo  par- 
ticipate. Let  the  enlightened  author  of  this  experiment  himself  explain 
its  effects.  In  a  letter,  written  by  sir  Alexander  Johnston  to  the  Board 
of  Control  in  the  year  1815,  he  says: 

"  I  have  the  pleasure,  at  your  request,  to  give  you  an  account  of  the 
plan  I  adopted,  while  chief-justice  and  first  member  of  his  majesty's 
council  in  Ceylon,  for  introducing  the  trial  by  jury  into  that  island, 
and  for  extending  the  right  of  sitting  on  juries  to  every  half  caste  na- 
tive, as  well  as  to  every  other  native  of  the  country  to  whatever  caste 
or  religious  persuasion  he  might  belong.  I  shall  explain  to  you  the 
reasons  which  induced  me  to  propose  this  plan,  the  mode  in  which  it 
was  carried  into  effect,  and  the  consequences  with  which  its  adoption 
has  been  attended.  The  complaints  against  the  former  system  for  ad- 
ministering justice  were,  that  it  was  dilatory,  expensive  and  unpopu- 
lar. The  defects  of  that  system  arose  from  the.  little  value,  which  the 
natives  of  the  country  attached  to  a  character  for  veracity  ;  from 
the  total  want  of  interest,  which  they  manifested  for  a  system  in 
the  administration  of  which  they  had  no  share  ;  from  the  difficulty 
which  Europeans,  .who  were  not  only  judges  of  law  but  also  of  fact, 
experienced  in  ascertaining  the  degree  of  credit  which  they  ought  to 
give  to  native  testimony  ;  and  finally,  from  the  delays  in  the  proceed- 
ings of  the  court."  The  chief-justice  then  details  the  remedies  he 
proposed  for  these  evils,  which  could  only  be  removed,  as  he  thought, 
by  the  introduction  of  the  trial  by  jury.  He  says,  that  he  then  con- 
sulted the  chief  priests  of  the  Budha  religion,  and  the  Brahmins,  as 
to  the  effect  it  would  have  on  the  followers  of  those  religions ;  and 
having  submitted  his  plan  to  the  governor  and  council,  who  "  thinking 
the  adoption  of  the  plan  an  object  of  great  importance,  and  fearing 
lest  objections  might  be  urged  against  it  in  England  on  account  of  its 
novelty,  no  such  rights  as  were  proposed  to  grant  to  the  natives  of  Cey- 
lon ever  having  been  granted  to  any  native  of  India,"  sent  him  to 
urge  its  adoption,  and  he  most  fortunately  succeeded.  The  chief-justice 


-J2S  INTRODUCTORY  REPORT  TO 

then  proceeds  to  explain  the  qualifications  of  jurors,  the  manner  of  se- 
lecting them,  and  of  conducting  the  trial  ;  all  of  which,  though  highly 
interesting,  do  not  so  immediately  apply  to  my  subject,   as  the  ac- 
count of  the  effects,  which  he  thus  details  :   "  The  native  jurymen  being 
now  judges  of  fact,  and  the  European  judges  the  judges  of  law,  one 
European  judge  only  is   necessary.      The  native  jurymen,  knowing 
the  different  degrees  of  weight  which  may  safely  be  given  to  their 
countrymen,  decide  upon  questions  of  fact  with  more  promptitude. 
tflll  the  natives,  who  attend  the  courts  as  jurymen,  obtain  so  much 
information  during  their  attendance,  relative  to  the  modes  cf  pro- 
ceeding and  the  rules  of  evidence,   that  since  the  establishment  of 
jury  trials,  government  have  been  able  to  find  among  the  half-caste, 
and  native  jurymen,  some  of  the  most  efficient  and  respectable  -ma- 
gistrates in  the  country."     After  stating  that  the  saving  it  produces 
to  government  is  at  least  10,000/.  a  year,  he  proceeds  : — "  No  man 
whose  character  for  honesty  or  veracity  is  impeached,  can  be  enrolled  on 
the  list  of  jurymen.    The  circumstance  of  a  man's  name  being  upon  the 
jury-roll,  is  a  proof  of  his  being  a  man  of  unexceptionable  character,  and 
is  that  to  which  he  appeals,  in  case  his  character  be  attacked,  or  in  case 
he  solicits  his  government  for  promotion.     As  the  rolls  of  jurymen  are 
revised  by  the  supreme  court  at  every  session,  they  operate  as  a  most 
powerful  engine,  in  making  the  people  of  the  country  more  attentive 
than  they  used  to  be  in  their  adherence  to  truth.     The  right  of  sit- 
ting upon  juries,  has  given  to  the  natives  of  Ceylon  a  value  for  cha- 
racter which  they  never  felt  before,  and  has  raised  in  a  very  remark- 
able manner  the  standard  of  their  moral  feelings.     Ml  the  natives 
of  Ceylon,  who  are  enrolled  as  jurymen,  conceive  themselves  as  much 
a  part,  as  the  European  judges  themselves  are,  of  the  government  of 
the  country,  and  therefore  feel,  since  they  have  possessed  the  right 
of  sitting  upon  juries,  an  interest  which  they  never  felt  before  in 
upholding  the  British  government  of  Ceylon."  He  then  gives  as  a 
proof  of  this,  their  indifference  in  wars  before  this  privilege,  contrast- 
ed with  their  zeal  in  those  after  it  was  conferred.     The  writer  of  this 
interesting  and   highly  instructive   letter    refers,   as  a  proof  of  his 
assertions,  to  a  charge  delivered  by  his  successor  eight  years  after  the 
experiment  was  tried,  in  which  he  ascribes  a  remarkable  decrease  of 
crimes,  "  above  all  other  causes,  to  the  introduction  of  the  trial  by 
jury.     To  this  happy  system,"  he  proceeds,  "  now  deeply  cherished  in 
the  affections  of  the  people  and  revered  as  much  as  any  of  their  own 
oldest  and  dearest  institutions,  /  do  confidently  ascribe  this  pleasing 
alteration  ;  and  it  may  be  boldly  asserted,  that  while  it  continues  to 
be  administered  with  firmness  and  integrity,  the  British  government 
will  hold  an  interest  in  the  hearts  of  its  Singalee  subjects,  which  the 
Portuguese  and  Dutch  possessors  of  this  island  were  never  able  to 
establish." 

The  statement  of  this  case,  tallying  so  exactly  with  the  ideas  1  had 
expressed  some  years  before  the  letter  was  written,  is  worth  volumes 
of  arguments,  and  every  reflection  I  have  given  to  the  subject  since, 
and  they  have  neither  been  few  nor  cursory,  has  convinced  me  so  much 
of  the  danger  of  tampering  with  so  great  a  blessing,  of  injuring  in  the 
attempt  to  ameliorate  what  is  so  positively  good,  that  I  could  not  ven- 
ture to  propose  any  alterations,  although  some  came  recommended  by 
the  most  plausible  reasons  as  valuable  improvements:  among  these  was 
that  of  substituting  for  the  unanimity  now  requisite  to  a  decision,  a  bare 


THE  CODE  OF  PROCEDURE.  229 

majority  of  votes,  or  some  other  number  less  than  the  whole.  The 
absurdity,  as  well  as  cruelty,  of  enforcing  that  unanimity,  under  pain 
of  starvation,  and  the  injustice  of  making  the  fate  of  the  accused  de- 
pend on  the  ability  of  his  judges  to  resist  hunger  and  thirst,  seem  so 
apparent,  that,  if  no  other  remedy  could  have  been  found  for  the  evil, 
I  should,  perhaps,  have  abandoned  this  characteristic  in  the  trial  by  jury, 
and  adopted  some  of  the  proposed  modifications,  to  avoid  the  evil.  But 
a  practice  had  been  introduced,  which,  where  it  prevailed,  in  a  great 
measure  presented  the  remedy  I  sought.  Courts  in  the  exercise  of  the 
legislative  power  which  they  held,  partly  by  assumption,  partly  by  the 
negligent  permission  of  the  branch  to  which  it  of  right  belongs,  had 
gradually  introduced  an  important  change  in  this  branch  of  our  juris- 
prudence :  when  jurors  could  not  agree,  instead  of  being  starved,  or 
in  some  cases  carted  into  unanimity,  they  were  discharged  ;  and  the 
contest  became  one  of  argument  and  reason,  instead  of  physical  force 
and  ability  to  resist  the  cravings  of  nature.  The  objections  to  this  im- 
provement, for  such  experience  has  shown  it  to  be,  are,  that  being  en- 
tirely without  legislative  sanction,  it  depends  on  the  court  to  determine 
whether  it  shall  be  introduced  at  all,  and  when  it  is,  what  degree  of 
suffering  must  be  undergone  by  the  jury  before  they  are  discharged. 

In  the  code  presented  to  you,  rules  are  prescribed  for  that  purpose. 
The  legislature  speaks,  and  it  is  no  longer  imposed  upon  the  court,  as 
some  decisions  require,  to  watch,  like  the  medical  attendants  on  a  vic- 
tim of  the  inquisition,  over  the  struggles  between  nature  and  famine, 
and  to  discharge  the  juror  only  when  they  are  convinced  that  there  is 
immediate  danger  that  death  will  release  him(a).  The  jurors  are  no 
longer  to  be  kept  without  food  ;  because  it  is  not  considered  to  be  well 
established,  that  hunger  will  bring  a  man  to  a  correct  conclusion,  though 
it  may  to  a  speedy  one  ;  and  in  the  system  I  have  adopted,  justice  is 
the  first,  and  celerity  only  a  secondary  consideration.  Jurors  are  treat- 
ed like  reasonable  beings,  and  with  the  respect  due  to  a  co-ordinate 
branch  with  the  judges  in  the  administration  of  justice  ;  subject,  indeed, 
to  their  control  for  the  maintenance  of  order  and  the  advancement  of 
justice  but  to  a  legal  control,  not  an  arbitary  discretion  ;  their  delibera- 
tion must  be  free  from  the  restraint  of  physical  wants — their  determina- 
tion the  result  of  reason  and  conviction.  Perhaps,  too,  the  concur- 
rence of  circumstances(6),  that  probably  produced  the  extraordinary 
feature  in  this  mode  of  trial,  which  requires  unanimity  for  a  verdict, 
has  been  more  fortunate  than  design  would  probably  have  been,  in 
adapting  it  to  the  ends  of  justice  in  criminal  proceedings  ;  for  I  am  in- 
clined to  think,  if  a  bare  majority  were  sufficient  to  give  a  verdict, 
that  in  a  secret  consultation,  where  there  is  no  excitement  created  by 

(a)  7  Johnson's  Cases,  The  People  v.  Olcot.  Chief-justice  Kent  says,  "the  power  of 
discharging  a  jury,  in  a  criminal  case,  is  a  highly  important  ard  delicate  trust,  yet  it  does 
exist  incases  of  extreme  and  obstinate  necessity."  See  the  other  cases  there  cited. 

(6)  It  has  been  conjectured  (and  I  think  with  reason)  that  the  unanimity  afterwards  re- 
quired, formed  no  part  of  the  primitive  institution  of  juries,  which  originally,  it  is  argued  from 
the  analogy  of  grand  juries,  the  grand  assize,  and  sheriffs'  inquests,  must  have  consisted, 
like  them,  of  twenty-three,  a  majority  of  the  whole  number  (twelve)  being  necessary  for  a 
decision;  that  afterwards,  at  some  unknown  period,  probably  when  suits  began  to  multiply 
and  the  attendance  of  so  many  jurors  was  found  burthensome,  the  practice  of  summoning 
only  twelve  was  introduced,  but  that  the  concurrence  of  the  same  majority  of  twelve  contin- 
ued to  be  required. 


•>30  INTRODUCTORY  REPORT  TO 

the  presence  of  auditors  or  by  the  prospect  of  publicity,  the  decision 
would,  for  the  most  part,  be  made  merely  by  ascertaining  the  number 
of  members  on  each  side,  without  that  discussion  which  is  so  necessary 
to  elicit  truth.  Indeed,  I  have  been  told  by  those  who  have  served 
frequently  on  juries,  and  I  have  made  the  inquiry  in  different  states, 
that  the  first  thing  generally  done,  after  they  retire,  is,  previous  to  any 
debate,  to  take  a  vote  on  the  question,  and  a  division  of  opinion  al- 
ways, under  the  present  system,  leads  to  a  revisal  of  the  testimony  and 
a  discussion  of  the  arguments  that  have  been  offered  ;  whereas,  if  a 
majority  were  to  decide,  the  vote  would  have  decided  the  cause.  Ano- 
ther consideration,  also,  must  have  some  weight  in  favour  of  the  ver- 
dict by  unanimity  :  the  evidence  that  subjects  a  citizen- to  the  serious 
consequences  of  conviction  for  an  offence,  ought  to  be  so  clear  as  to  con- 
vince the  understandings  of  all ;  if  then  it  should  fail  to  convince  one- 
fourth,  or  any  other  given  proportion  of  the  jury,  the  probability  is, 
that  its  impression  would  be  the  same  on  the  rest  of  the  community  ; 
and  the  conviction  of  a  man,  whom  one-fourth  or  one-tenth  of  his  fel- 
low-citizens believed  to  be  innocent,  could  not  but  have  effects  upon  the 
confidence  which  ought  to  be  reposed  in  the  administration  of  justice 
more  injurious  than  his  acquittal  could  be,  if,  although  really  guilty, 
he  should  be  pronounced  innocent  by  a  unanimous  verdict.  Reverse 
the  case,  and  suppose  three,  or  two,  or  even  a  single  one,  of  the  jury 
so  perfectly  convinced,  from  the  evidence,  that  the  defendant  has  com- 
mitted the  crime,  as  to  be  ready  to  attest  his  conviction  under  the  sanc- 
tion of  an  oath,  and  consequently  refusing  to  join  in  the  verdict  of 
acquittal,  while  the  rest  of  the  jury  doubt  his  guilt  or  even  believe 
him  to  be  innocent :  to  acquit  him  under  such  circumstances,  would 
neither  restore  him  to  society  with  the  pure  reputation  that  every  man, 
who  has  been  pronounced  innocent  by  his  fellow-citizens,  ought  to  en- 
joy, nor  will  it  remove  the  alarm  which  his  enlargement  will  create  in 
a  community,  a  large  proportion  of  which  still  believed  him  guilty, 
and,  of  course,  encouraged  by  impunity,  ready  to  repeat  his  former 
crime.  Thus,  whether  we  consider  the  effect  of  an  acquittal  or  convic- 
tion by  less  than  the  whole  number  of  the  jury,  upon  the  community, 
or  the  accused,  upon  the  administration  of  justice,  or  its  reputation,  we 
find  nearly  the  same  objections  to  making  any  change.  If  the  defend- 
ant is  acquitted,  he  returns  with  a  tarnished  reputation,  and  the  com- 
munity is  not  relieved  from  their  alarm.  If  he  is  convicted,  the  chance 
of  his  being  innocent  is  increased  in  proportion  to  the  number  of  the 
jury  who  believed  him  so  ;  and  the  same  proportion  of  his  fellow-citi- 
zens participating  in  this  belief,  will  arraign  the  justice  of  their  coun- 
try, and  consider  him  upon  whom  it  has  been  exercised  as  an  innocent 
victim,  not  a  guilty  object  of  just  punishment.  In  the  actual  adminis- 
tration of  the  laws,  we  have  seen  the  effect  it  will  produce,  of  a  reli- 
ance upon  first  and  cursory  impressions,  a  neglect  of  due  discussion  and 
a  careless  decision  by  shifting  the  responsibility  upon  a  majority,  who 
act  in  secret,  and  whose  names  are  not  distinguished  from  those  of 
their  fellows.  Where  all  convict,  or  all  acquit,  there  is  responsibility; 
upon  a  secret  majority  there  is  none  ;  and  to  make  them  record  their 
names  and  votes,  or  to  give  publicity  to  all  their  deliberations,  would 
be  attended  with  inconveniences  too  obvious  to  be  detailed.  However 
just  in  itself,  no  system  of  criminal  procedure  can  be  good  which  does 
not  create  in  the  mass  of  the  people  a  belief  that  he  who  is  acquitted 


THE    CODE    OF  PROCEDURE.  231 

under  it  is  innocent,  and  that  no  punishment  can  be  inflicted  but  on  the 
guilty.  This  belief  constitutes  the  reputation  of  judicial  proceeding, 
and  it  is  as  necessary  to  this  branch  of  government  as  good  character 
is  to  individuals  ;  but  we  have  seen  that  it  will  be  greatly  impaired  by 
any  other  course  than  that  of  requiring  unanimity  in  the  jury  that  de- 
cides in  criminal  cases.  It  is  not  my  intention  to  discuss  its  propriety 
in  those  of  a  civil  nature  further  than  to  say,  that  most  of  the  reasons 
I  have  urged  will  not  apply  to  the  latter.  I  have  dwelt  longer  on  this 
subject  than  I  should  have  done,  if  I  had  not  found  a  disposition  in  the 
friends  of  this  institution  to  rest  the  defence  of  this  particular  feature 
on  its  antiquity,  rather  than  its  wisdom  or  its  use  ;  and  in  its  enemies, 
to  urge  this  characteristic  as  an  unanswerable  objection  to  the  jury  trial 
in  its  present  form.  The  legislature  will  judge  whether  it  has  been 
wisely  preserved  or  not.  This  discussion  has  rather  anticipated  on  the 
regular  course  of  this  review,  the  natural  order  of  which  is  to  follow 
that  of  the  different  chapters  of  the  work  ;  one,  which  has  before  been 
cursorily  mentioned,  is  connected  with  the  subject  we  have  just  left : 
it  regulates  the  manner  in  which  the  grand  and  petit  juries  are  to  be 
selected — in  such  a  way  as  to  equalize  the  duty  upon  all  the  citizens 
capable  of  performing  it,  and  rendering  it  the  means  of  a  gradual  dif- 
fusion of  legal  and  political  information  through  the  whole  communi- 
ty. The  designation  is  on  the  principle,  now  in  such  successful  opera- 
tion, of  a  mixture  of  chance  and  selection,  which  precludes  the 
possibility  of  any  favour  in  empanelling  the  jury,  and  gives  little  or 
no  opportunity  for  influence  after  they  are  chosen. 

The  seventh  chapter  of  this  title  lays  down  rules  for  proceedings  in 
court,  previous  to  the  trial.  The  first  section  gives  to  the  court  the  dis- 
cretionary powers  of  postponing  the  trial,  whenever  such  circumstances 
are  made  to  appear,  by  proper  proof,  as  show  that  justice  requires  it, 
but  with  the  limitation  that  the  defendant,  if  in  custody,  must  be  tried 
before  the  end  of  the  second,  or,  if  on  bail,  before  the  end  of  the  fourth 
term,  unless  the  delay  has  taken  place  at  his  instance,  or  by  his  fault. 

After  all  the  precautions  given  by  the  mode  of  empanelling  the  jury, 
it  may  happen  that  the  forms  presented  by  law,  for  returning  and  select- 
ing the  jurors,  have  not  been  observed  ;  that  one  or  more  of  them  may 
not  be  legally  qualified  to  serve  on  any  jury — or,  by  reason  of  interest, 
partiality,  relationship,  or  some  other  cause,  disqualified  to  be  on  the 
one  for  which  they  are  drawn.  To  secure  that  impartiality  which  is 
so  essential  to  justice,  the  law  has  provided  remedies  adapted  to  each  of 
these  cases  ;  they  are  taken,  with  but  little  alterations,  from  the  Eng- 
lish law  ;  the  technical  terms  are  preserved  ;  but  the  challenge  to  the 
array  can,  under  this  system,  only  be  made  for  a  single  cause,  that  the 
forms  of  the  law  for  forming  the  panel  have  not  been  followed.  Where 
the  names  were  selected  from  the  community  at  large,  at  the  discretion 
of  the  returning  officer,  his  interests,  enmities,  and  connexions,  with 
the  party,  formed  so  many  reasons  for  making  this  challenge  ;  all  of 
which  are  avoided  by  our  mode  of  making  out  the  panel.  Exceptions 
to  particular  jurors  remain  nearly  as  under  the  English  law.  The  pe- 
remptory challenge,  for  which  the  party  need  assign  no  reason,  is  a 
wise  and  humane  provision,  peculiar,  it  is  believed,  to  the  English  juris- 
prudence. There  are,  in  life,  so  many  unfriendly  feelings,  created  by 
trifles,  or  for  reasons  which  it  would  be  difficult  to  assign,  but  which 
destroy  the  perfect  impartiality  required  in  a  judge,  that  we  cannot  too 


232  INTRODUCTORY  REPORT   TO 

much  admire  the  provision  that  enables  a  party  to  reject  him  who  may 
be  affected  by  these  feelings,  without  being  questioned  as  to  his  motive. 
Considering  the  little  chance  there  is,  under  our  plan  of  preparing  the 
panel,  that  any  great  number  of  persons,  unfavourably  disposed  to  any 
individual  accused,  could  be  found  on  it,  it  was  thought  that  giving  the 
privilege  of  challenge  to  nine  jurors  peremptorily,  was  a  sufficient  ex- 
tension. The  public  prosecutor  has  the  same  right,  but  extended  only 
to  three  jurors ;  the  reason  for  this  restriction  is  obvious  ;  the  preju- 
dice against  the  public  can  be  supposed,  and  the  only  undue  affection  of 
the  mind  to  be  guarded  against  by  the  prosecution,  is  favour  to  the  de- 
fendant, which,  if  made  apparent  by  evidence  or  by  the  declaration  of 
the  juror,  is  a  disqualification  under  another  head, — the  challenge  for 
cause  ;  this  may  be  made  both  by  the  defendant  and  the  prosecutor,  and, 
of  course,  has  no  restriction  as  to  number.  The  reasons  for  which  it  may 
be  made,  are  set  forth  at  length,  and  embrace  every  fact  or  opinion  that 
can  show  the  slightest  bias  for  or  against  the  prisoner  ;  and  the  mode 
of  trying  the  facts,  which  evince  this  bias,  or  the  disqualifying  opera- 
tion they  may  have  on  the  jurors,  is  prescribed. 

The  next  chapter,  which  directs  the  mode  of  proceeding  on  the  trial, 
contains  some  provisions  which  call  for  attention.  The  jurors  are  drawn 
by  lot,  not  in  the  order  they  stand  on  the  panel  ;  a  different  practice 
had  obtained  in  our  courts,  which  it  was  thought  proper  to  correct,  being 
a  deviation  from  the  English  law,  and  liable  to  obvious  abuse.  Any 
number  of  jurors,  less  than  twelve,  that  may  be  agreed  on  between  the 
prosecutor  and  the  defendant,  may  try  a  misdemeanor,  for  the  purpose 
of  avoiding  delay  in  causes  of  little  importance,  wherein  a  speedy  de- 
cision may  sometimes  avoid  inconveniences  greater  than  the  punishment 
of  the  offence,  if  the  party  be  found  guilty  ;  but  it  is  not  allowed  in  cases 
of  crime,  in  which  the  party  can  neither  renounce  the  trial  by  jury,  nor 
modify  it,  for  reasons  which  have  been  already  stated  at  large.  The 
order  in  which  the  case  is  opened  to  the  jury,  and  the  proof  introduced, 
is  the  same  as  that  now  in  use  ;  but  a  material  change  is  made,  by  giving 
the  closing  argument  to  the  defendant.  It  was  thought  that  this  was 
proper  and  just,  because  it  is  an  advantage,  that  is  to  say,  a  benefit  to 
one  party,  that  the  other  does  not  and  cannot,  from  the  nature  of  things, 
enjoy.  To  whom  shall  this  be  given,  to  the  accuser  or  the  accused, 
to  him  who  asserts  or  him  who  denies?  Humanity  and  justice  seem 
to  dictate  the  answer.  Every  address  to  a  judge  must  be  supposed  to 
contain  a  new  allegation  of  fact,  a  new  argument,  or  a  new  answer  to 
rebut  those  which  have  been  offered  on  the  other  side  ;  to  close  the  de- 
bate, therefore,  without  suffering  the  accused  to  reply  to  such  allegation 
or  argument,  would  be  in  so  much  as  regards  it,  to  decide  on  his  case 
without  hearing  him.  The  same  thing  may  be  said  of  the  prosecution. 
The  remedy  would  be  to  suffer  the  argument  to  go  on  until  both  parties 
declared  they  had  nothing  further  to  say  ;  but  this  would  rarely  hap- 
pen, and  never  until  the  discussion  had  been  protracted  to  a  length  so 
highly  inconvenient  as  not  to  be  permitted.  It  seems,  then,  as  has  been 
said,  that  the  nature  of  the  case  imposes  the  necessity  of  giving  this  ad- 
vantage to  the  one  party  or  the  other.  To  give  it  to  the  prosecution, 
sometimes  defeats  the  ends  of  justice,  by  enlisting  the  feelings  of  hu- 
manity on  the  side  of  the  accused.  There  is  in  human  nature,  when 
not  perverted,  a  feeling  repugnant  to  oppression,  which  generally  sup- 
poses power  to  be  wrong,  and  ascribes  innocence  to  weakness,  when- 


THE  CODE  OF  PROCEDURE.  233 

ever  they  come  in  competition  with  each  other  ;  and  few  cases  give  such 
scope  to  the  imagination  to  exert  itself  in  this  way,  as  that  of  a  criminal 
on  his  trial — squalid  in  his  appearance,  his  body  debilitated  by  confine- 
ment, his  mind  weakened  by  misery  or  conscious  guilt,  abandoned  by 
all  the  world,  he  stands  alone,  to  contend  with  the  fearful  odds  that  are 
arrayed  against  him.  It  is  true  he  has  counsel  assigned  him  ;  but  here 
again  the  same  feelings  operate  to  lead  the  judgment  astray.  This 
counsel  is  generally  the  youngest  counsellor  at  the  bar,  who  is  thus  made 
to  enter  the  lists  with  one  of  the  highest  abilities  and  standing,  with  a 
reputation  so  well  established  as  to  have  made  him  the  choice  of  gov- 
ernment as  the  depository  of  its  interests.  If  you  add  to  all  this,  the  de- 
cided advantage  of  the  closing  argument,  given  to  a  practised  advocate, 
whom  long  habit  has  taught  to  avail  himself  of  every  weak  argument 
or  suspicious  fact,  and  a  zeal  in  the  performance  of  his  duty  has  taught 
to  believe  it  proper  to  do  so  ; — do  this,  and  of  two  opposite  effects  one 
must  be  produced,  both  injurious  to  the  fair  administration  of  justice  : 
either  the  jury  will  be  swayed  by  the  sentiment  1  have  endeavoured  to 
describe,  and  feel  an  undue  bias  in  favour  of  the  prisoner;  or  if  this  fails 
to  act,  the  last  impression  given  with  the  force  of  eloquence  and  pro- 
fessional skill,  may,  in  doubtful  cases,  have  injurious  consequences  to 
the  innocent.  But  give  the  last  word  to  the  accused,  and  you  will  do 
little  more  than  counterbalance  the  disadvantages  inseparable  from  his 
situation  ;  while,  by  this  show  of  humanity  and  disdain  of  using  the 
power  in  your  hands,  you  neutralize  the  sentiment  that  would  other- 
wise be  felt  in  his  favour.  The  provision  here  recommended  makes 
part  of  the  French  code  of  criminal  procedure,  and  it  is  said  to  have, 
in  practice,  the  most  beneficial  effects. 

Another  change,  of  the  same  character  with  the  one  last  mentioned, 
was  noticed  in  the  Report  on  the  Plan  of  a  Penal  Code  made  in  1822(a), 
which  received  the  unanimous  approbation  of  the  legislature;  yet  it  has 
been  made  the  ground-work  of  an  attempt  to  prejudice  the  public  mind 
against  the  work  and  its  author,  as  if  it  were  a  design  to  lessen  the 
dignity  of  the  judiciary  branch  of  our  government,  suggested  by  a  spirit 
of  hostility  to  that  department,  or  of  personal  enmity  to  those  who  fill 
it.  To  repel  this  is  necessary,  in  reference  both  to  the  objection  itself 
and  the  motives  that  are  imputed. 

A  system  of  penal  law,  containing  principles  or  provisions  injurious 
to  the  power  upon  which  alone  it  must  depend  for  its  execution,  would 
be  an  absurdity  too  gross  even  for  imbecility  to  produce  ;  and  before 
it  is  fixed  on  the  code  I  have  now  the  honour  to  offer,  it  ought  to  be 
strictly  examined.  The  obnoxious  article  is  in  the  following  words(i): 
"  When  the  pleadings  are  finished,  the  judge  shall  give  his  charge  to 
the  jury,  in  which  he  shall  state  to  them  all  such  matters  of  law  as  he 
shall  think  necessary  for  their  information  in  giving  their  verdict ;  but 
he  shall  not  recapitulate  the  testimony  unless  requested  so  to  do  by  one 
or  more  of  the  jurors,  if  there  should  be  any  difference  of  opinion  be- 
tween them  as  to  any  particular  part  of  the  testimony,  and  then  he 
shall  confine  his  information  to  the  part  on  which  information  is  re- 
quired ;  being  the  intent  of  this  article,  that  the  jury  shall  decide  all 
questions  of  fact,  in  which  is  included  the  credit  due  to  the  witnesses 
who  have  been  sworn,  unbiassed  by  the  opinion  of  the  court."  This 
is  the  text.  I  add  the  reasons  as  they  are  given  in  the  first  report,  that 

(a)  Page  42.  (b)  Code  of  Procedure,  b.  ii.  c.  8. 

2E 


234  INTRODUCTORY  REPORT  TO 

the  legislature  may  see  whether  the  provision  was  not  dictated  by  the 
exalted  opinion  of  the  judicial  character,  which,  in  its  purity,  it  de- 
serves ;  by  a  desire  to  prevent  any  encroachment  by  the  bench  on 
that  feature  in  our  jurisprudence  which  assigns  to  the  judges  the  de- 
cision of  questions  of  law,  to  the  jury  those  of  fact  ;  and  whether  in 
its  operation  it  will  not  save  the  judges  from  degrading  altercation, 
render  juries  more  independent  and  more  attentive  to  their  great  duties, 
and  exalt  rather  than  debase  the  judicial  character,  and  preserve  unim- 
paired the  distinctive  characters  of  the  jury  and  the  bench. 

This  is  the  extract  from  the  Report.  "  Another  article,  applicable 
to  the  trial,  restricts  the  charge  of  the  judge  to  an  opinion  of  the  law, 
and  allows  a  repetition  of  the  evidence  only  when  required  by  the  jury, 
or  any  one  of  them.  The  practice  of  repeating  all  the  testimony  from 
notes,  always,  from  the  nature  of  things,  imperfectly,  not  seldom  inac- 
curately, and  sometimes  carelessly  taken,  has  a  double  disadvantage  ; 
it  makes  the  jurors,  who  depend  more  on  the  the  judge's  notes  than  on 
their  own  memory,  inattentive  to  the  evidence,  and  it  gives  them  an 
imperfect  copy  of  that  which  the  nature  of  the  trial  by  jury  requires 
they  should  record  on  their  own  minds.  Forced  to  rely  upon  them- 
selves, the  necessity  will  quicken  their  attention,  and  it  will  be  only 
when  they  disagree  in  their  recollection  that  recourse  will  be  had  to 
the  notes  of  the  judge.  '  There  is  also  another  and  more  cogent  reason 
for  the  restriction.  Judges  are  generally  men  who  have  grown  old  in 
the  practice  at  the  bar.  With  the  knowledge  which  this  experience 
gives,  they  also  acquire  a  habit,  very  difficult  to  be  shaken  off,  that  of 
taking  a  side  in  every  question  that  they  hear  debated  ;  and  when  the 
mind  is  once  enlisted,  their  passions,  prejudices,  and  their  professional 
ingenuity  are  always  arrayed  on  the  same  side,  and  furnish  arms  for 
the  contest  ;  neutrality  cannot,  under  these  circumstances,  be  expected  ; 
but  the  law  should  limij:,  as  much  as  possible,  the  evil  that  this  almost 
inevitable  state  of  things  must  produce.  In  the  theory  of  our  law, 
judges  are  the  counsel  for  the  accused  ;  in  the  practice,  they  are,  with 
a  few  honourable  exceptions,  his  most  virulent  (a)  prosecutors.  The 
true  principles  of  criminal  jurisprudence  require,  that  he  should  be 
neither.  Perfect  impartiality  is  inconsistent  with  these  duties.  A 
good  judge  should  have  no  wish  that  the  guilty  should  escape,  or  that 
the  innocent  should  suffer  ;  no  false  pity,  no  undue  seventy  should  bias 
the  unshaken  rectitude  of  his  judgment  ;  calm  in  deliberation,  firm  in 
resolve,  patient  in  investigating  the  truth,  tenacious  of  it  when  disco- 
vered ;  he  should  join  urbanity  of  manners  to  dignity  of  demeanour, 
and  an  integrity  above  suspicion  to  learning  and  talent ;  such  a  judge 
is  what,  according  to  the  structure  of  our  courts,  he  ought  to  be — the 
protector,  not  the  advocate,  of  the  accused — his  judge,  not  his  accuser  ; 
and  while  executing  these  functions,  he  is  the  organ  by  which  the  sa- 
cred will  of  the  law  is  pronounced.  Uttered  by  such  a  voice,  it  will 
be  heard,  respected,  felt,  obeyed.  But  impose  on  him  the  task  of  ar- 
gument, of  debate  ;  degrade  him  from  the  bench  to  the  bar  ;  suffer 
him  to  overpower  the  accused  with  his  influence,  or  to  enter  the  lists 
with  his  advocate,  to  carry  on  the  conflict  of  sophisms,  of  angry  argument, 
of  tart  replies,  and  all  the  wordy  war  of  forensic  debate  :  suffer  him  to 

(a)  The  conduct  of  some  judges  would  justify  this  epithet ;  but,  on  reflection,  I 
regret  that  it  has  been  so  generally  applied  as  is  done  in  the  text  ;  zealous  would  have 
better  expressed  the  idea  I  meant  to  convey. 


THE  CODE  OF  PROCEDURE. 


235 


do  this,  and  his  dignity  is  lost,  his  decreesxare  no  longer  considered  as 
the  oracles  of  the  law*;  (hey  are  submitted  to,  but  not  respected  ;  and 
even  the  triumph  of  his  eloquence  or  ingenuity,  in  the  conviction  of 
the  accused,  must  be  lessened  by  the  suspicion  that  it  has  owed  its 
success  to  official  influence  and  the  privilege  of  arguing  without  reply. 
For  these  reasons  the  judge  is  forbidden  to  express  any  opinion  on  the 
facts  which  are  alleged  in  evidence,  much  less  to  address  any  argument 
to  the  jury  ;  but  his  functions  are  confined  to  expounding  the  law,  and 
stating  the  points  of  evidence  on  which  the  recollection  of  the  mem- 
bers of  the  jury  may  differ." 

In  speaking  of  the  formation  and  functions  of  juries,  the  greater  part 
of  that  which  relates  to  verdicts,  the  subject  of  the  next  chapter,  was 
anticipated.  Some  articles  deserve  consideration.  The  term,  offences 
of  the  same  nature,  frequently  occurs  in  this  system,  and  it  is  import- 
ant to  keep  in  mind  the  sense  in  which  it  is  declared  to  be  used.  Of- 
fences, we  must  remember,  were  arranged  in  relation  to  this  object 
under  a  variety  of  heads  ;  as  offences  against  person,  property,  reputa- 
tion, and  the  like.  All  offences  arranged  under  the  same  head,  are 
offences  of  the  same  nature  :  of  these,  some  are  higher,  others  lower 
in  degree  ;  the  lowest  being  the  first  in  numerical  order,  and  ascending 
on  a  scale  prepared  by  a  view  of  the  injurious  effects  of  each  offence 
combined  with  the  degree  of  moral  depravity  evinced  in,  or  usually  at- 
tendant on,  its  commission.  This  explanation  is  necessary  to  an 
understanding  of  the  power,  given  to  the  jury,  to  find  the  defendant 
guilty  of  a  lower  offence,  of  the  same  nature  with  the  one  charged  in 
the  indictment,  provided  that  the  lower  offence  be  produced  by  the 
same  circumstances  ;  thus,  if  one  be  indicted  for  murder,  the  jury  may 
convict  of  manslaughter  or  negligent  homicide  in  any  of  the  degrees ; 
if  he  be  indicted  for  battery  or  theft,  aggravated  by  any  other  circum- 
stances which  enhance  the  guilt  of  the  offender,  the  jury  may  convict 
of  any  of  those  offences  of  the  same  nature,  which  are  lower  in  the 
scale  of  crime  ;  but  it  must  be  the  same  homicide,  the  same  battery, 
the  same  theft,  that  is  charged  in  the  indictment.  On  the  contrary,  on 
an  indictment  for  negligent  homicide  in  the  first  degree,  the  party  may 
not  be  convicted  of  manslaughter,  murder,  or  any  of  the  other  degrees 
of  homicide  ;  nor,  if  indicted  for  simple  theft,  can  he  be  found  guilty 
of  robbery  ;  but  if  on  the  trial  the  evidence  is  found  to  support  a 
charge  of  a  higher  degree  than  the  one  set  forth  in  the  indictment,  the 
court  is  directed  to  discharge  the  jury  and  send  the  witnesses  to  the 
grand  jury,  for  the  purpose  of  having  an  indictment  preferred  for  the 
higher  offence. 

In  cases  of  acquittal  for  insanity,  that  fact  is  directed  to  be  certified, 
and  the  court  is  empowered  to  take  proper  measures  for  the  confine- 
ment of  the  party  or  his  delivery  to  his  relations. 

In  the  mode  in  which  verdicts  are  taken,  at  present,  on  charges  of 
forgery,  a  difficulty  sometimes  arises,  where  there  is  an  acquittal,  to 
know  on  what  grounds  the  decision  was  made  ;  whether  they  believe 
that  the  instrument  was  forged,  but  that  the  defendant  was  not  the  per- 
son guilty  of  the  crime ;  or  that  the  instrument  was  made  by  the  person 
whose  act  it  purported  to  be,  and  consequently  that  no  crime  had  been 
committed.  By  the  code,  whenever  the  acquittal  is  made  on  the  last 
mentioned  ground,  the  jury  are  directed  to  declare,  and  the  court  tore- 
cord  it ;  so  that  the  finding  may  serve  as  an  authority  for  the  person, 
whose  property  the  instrument  is,  to  receive  it.  In  the  first  case,  it  re- 


23C  INTRODUCTORY  REPORT  TO 

mains  in  the  hands  of  the  proper  officer  as  the  means  of  prosecuting  the 
offender,  whenever  he  is  discovered.  But  the  court  is  authorized  to 
make  such  order  respecting  it,  as  may  be  required  for  the  ends  of  jus- 
tice, in  case  any  civil  suit  should  be  commenced  which  may  make  its 
production  necessary. 

In  cases  of  conviction,  if  the  court  think  the  jury  have  mistaken 
the  law,  they  may  order  them  to  reconsider  their  verdict,  after  giving 
them  an  explanation  of  the  law;  but  they  have  not  this  power  given  to 
them  where  there  has  been  a  verdict  of  acquittal.     Directions  are  given 
for  ascertaining  whether  the  assent  of  each  juror  has  been  given  to  the 
verdict  declared  by  the  foreman,  and  for  recording  it.   When  the  verdict 
of  acquittal  is  entered  and  recorded,  the  defendant  is  entitled  to  his  im- 
mediate discharge,  without  any  detention  for  fees,  costs,  for  any  expenses 
incurred  by  his  confinement,  except  only  in  the  following  cases:  where 
other  charges  are  legally  exhibited  against  him;  where  the  public  prose- 
cutor requires  a  detention  not  exceeding  twelve  hours,  to  frame  such 
charge  on  an  official  allegation  to  the  court,  that  he  has  the  evidence  to 
justify  it;  or  on  the  allegation  of  sufficient  causes  for  a  new  trial  if  pro- 
perly supported  by  evidence.      The  causes  that  are  deemed  sufficient 
are  precisely  enumerated,  and  all  are  founded  on  some  malpractice  of  the 
defendant,  in  producing  suborned  witnesses,  or  forged  papers — in  pre- 
venting, by  fraud  or  force,  the  attendance  of  the  witnesses  for  the  pro- 
secution— in  giving  evidence  out  of  court  to  the  jury — in  bribing  a  juror, 
or  causing  an  illegal  panel  to  be  returned.     A  much  longer  list  of  suf- 
ficient reasons  is  given  for  setting  aside  the  verdict  when  it  is  one  of 
conviction  ;  and  the  mode  is  pointed  out  by  which  the  facts,  in  either 
case,  are  to  be  substantiated.     The  long  title  of  arrest  of  judgment, 
under  our  present  system,  is  abridged  to  a  short  chapter  ;  and  all  the 
causes  for  which  the  defendant  may  now  hope  for  impunity,  after  his 
guilt  has  been  ascertained,  are  reduced  to  a  single  one — that  the  act  of 
accusation  does  not  contain  the  allegation  of  any  fact;    or  any  fact  cou- 
pled with  an  intent,  that  is  by  law  created  an  offence.     But  the  allow- 
ance of  the  motion  in  arrest  of  judgment,  only  places  the  party  in  the 
situation  in  which  he  was  before  the  indictment  was  found — liable  to 
be  again  indicted,  if  the  evidence  is  sufficient  for  that  purpose.     If  the 
code  has  been  supposed  too  favourable  to  the  accused,  in  some  of  its 
features,  it  has,  on  the  contrary,  been  considered  as  too  severe  in  this  ; 
but  after  the  best  reflection  my  mind  has  been  able  to  give  to  the  sub- 
ject,  it  can  perceive  no  injury  but  to  the  guilty  in  thus  restraining  the 
effects  of  allowing  a  motion  in  arrest  of  judgment,  nor  any  unnecessary 
vexation  even  to  them.     Suppose  the  case  of  one  brought  to  trial  on  an 
indictment  which  charges  facts  that  do  not  amount  to  an  offence  ;  if  this 
defect  had  been  pointed  out  before  the  trial,  no  one  supposes  that  it 
ought  to  operate  as  a  discharge  from  further  prosecution.    Why  should 
it,  after  a  jury  have  given  their  sanction  to  the  truth  of  the  facts,  and 
after  the  defendant  has  purposely,  perhaps,  omitted  to  avail  himself  of 
the  exception  ?     No  good  reason  can  be  alleged  :  even  the  maxim  that 
no  one  shall  twice  be  put  in  jeopardy,  perverted  as  it  has  been,  cannot 
be  brought  to  bear  on  the  question  ;  for  surely  no  one  can  be  said  to  be 
put  in  jeopardy  by  a  trial  for  facts  not  criminal  in  themselves,  and  which 
he  might  have  confessed  without  incurring  any  penalty  whatever. — 
Inree  days,  after  a  verdict  of  conviction,  are  allowed  for  making  a  mo- 
tion in  arrest  of  judgment  or  for  a  new  trial;  at  the  expiration  of  which 
time,  the  prisoner  is  to  be  brought  into  court  for  sentence  :  previous  to 


THE  CODE  OF  PROCEDURE.  237 

pronouncing  it,  the  prisoner  must  be  interrogated  to  know  whether  he 
can  allege  any  cause  why  judgment  should  not  be  given.  The  several 
matters  which  it  will  avail  him  to  show,  in  answer  to  this  interpellation, 
are  only  four  :  a  pardon — insanity — inevitable  accident,  that  prevented 
a  motion  for  a  new  trial  or  in  arrest  of  judgment  within  the  three  days 
— or  a  denial  that  he  is  the  person  convicted.  The  mode  in  which 
these  several  allegations  are  to  be  substantiated  and  disposed  of,  is 
pointed  out ;  and  previous  to  the  sentence  it  is  provided,  that  such 
matters  in  aggravation,  as  were  not  necessary  to  be  stated  in  the  indict- 
ment, may  be  shown  by  the  prosecution — and  such  in  extenuation,  by 
the  defendant,  as  would  not,  on  the  trial,  have  proved  him  to  have  been 
entirely  innocent. 

Before  we  consider  the  matters  incident  to  the  judgment,  it  may  be 
proper  to  review  the  provisions  which  characterize  the  previous  pro- 
ceedings, and  which  were  framed  with  the  view  of  depriving  offenders 
of  every  reasonable  hope  of  escaping  from  defects  of  form,  an  inesti- 
mable advantage  in  criminal  procedure;  but  which  would  be  purchased 
too  dear  if  attained  at  the  expense  of  unnecessary  risk  to  the  innocent, 
or  any  vexation  that  may  be  avoided  to  the  party,  whether  guilty  or 
innocent.  As  the  law  is  now  administered,  there  is  a  certain  class  of 
defects,  not  very  clearly  defined,  which  are  called  defects  of  substance  ; 
for  these  the  defendant  may  move  to  have  the  indictment  quashed,, 
that  is,  declared  to  be  void,  before  the  trial ;  or  he  may  take  the 
chance  of  a  verdict  in  his  favour,  and  if  that  hope  fail,  he  may  move 
to  arrest  the  judgment  after  a  verdict  against  him.  This  latter  course 
he  is  always  advised  to  pursue,  if  his  advocate  thinks  the  objection  a 
good  one,  because  the  effect  of  quashing  the  indictment  leaves  him  lia- 
ble to  a  renewal  of  the  prosecution ;  but  when  the  judgment  is  arrested, 
he  is  for  ever  discharged,  although  his  guilt  be  apparent.  Now,  most 
of  these  things  called  defects  of  substance,  are  in  reality  nothing  more 
than  mere  defects  of  form.  Sometimes  the  omission  of  writing  the 
name  of  the  county  in  the  margin  of  the  indictment,  although  it  be 
stated  in  the  body  of  the  instrument  itself;  sometimes  not  putting  it 
in  the  indictment,  although  it  be  in  the  margin,  and  other  omissions  of 
the  like  nature  ;  the  variance  of  a  letter  between  the  original  and  the 
copy  of  an  instrument  set  forth  in  the  indictment ;  sometimes  even  of 
a  comma,  has  been  held  a  sufficient  cause  for  setting  aside  a  conviction 
and  discharging  the  guilty  convict  without  punishment.  In  England 
and  in  this  state,  which,  as  we  have  seen,  are  governed  as  to  certain 
crimes  by  the  same  law,  any  defect  of  form  whatever  may  produce  this 
effect.  I  say  may  produce  it,  because  this,  like  other  points  of  practice, 
depends  very  much  on  the  will  of  the  judge  ;  the  law  having  varied  in 
this  respect,  not  by  the  act  of  the  legislature,  but  by  the  changing  de- 
cisions of  the  courts  ;  for  Sir  M.  Hale  laments,  that  "  that  strictness 
has  grown  to  be  a  blemish  and  inconvenience  in  the  law  and  the 
administration  thereof ;  for  that  more  offenders  escape,  by  the  over 
easy  ear  given  to  exceptions  in  indictments,  than  by  their  own  inno- 
cence." Here  we  have  the  highest  authority,  not  only  for  the  existence 
of  the  evil,  but  for  the  fact  of  its  being  produced  by  the  decisions  of  the 
court,  not  by  any  positive  law  ;  and  consequently,  if  one  set  of  judges 
have  altered  the  law  by  being  over  easy  in  listening  to  exceptions,  other 
judges  may  restore  it  to  its  original  state  in  which  it  was  before  the 
"  strictness  grew  to  be  a  blemish,"  or  they  will  have  a  plausible,  if  not 
a  legal  reason  for  increasing  that  strictness,  because  it  is  expressly 


238  INTRODUCTORY  REPORT  TO 

stated  to  be  law(a),  that  none  of  the  statutes,  which  allow  amendment 
in  civil  cases,  extend  to  those  of  a  criminal  nature.  It  is  of  little  con- 
sequence, however,  to  inquire  from  what  cause  this  strictness,  so  inju- 
rious to  the  administration  of  justice,  proceeds,  provided  we  guard 
against  its  effects  in  future.  This  has  been  attempted  not  by  abolishing 
the  necessity  for  forms,  but  by  supplying  them  whenever  they  have 
been  omitted,  and  amending  them  when  they  are  defective.  The  gene- 
ral enunciation  of  this  feature  in  the  code  was  so  much  assailed  by  the 
allegation,  that  allowing  the  amendments  would  enable  the  prosecuting 
officer  to  harass  by  charges  that  might  surprise  the  defendant  to  his 
vexation  and  injury.  An  inspection  of  the  provisions  by  which  this 
characteristic  in  the  plan  is  to  be  carried  into  execution,  it  is  confident- 
ly believed,  will  obviate  that  objection;  no  amendment  materially  alter- 
ing the  charge  can  be  made,  but  either  by  the  agency  of  the  grand  jury, 
which  would  never  lend  itself  to  vexatious  proceeding;  or  by  the  act  of 
the  defendant  himself,  when  he  points  out  an  error  arising  from  misno- 
mer, inaccurate  copies,  or  defects  of  this  nature.  Innocence  has  nothing 
to  fear,  nothing  to  complain  of,  from  this  proceeding  ;  guilt,  every 
thing  to  dread  ;  public  justice,  every  thing  to  gain.  I  consider  the 
adoption  of  this  part  of  the  code  so  essential  to  the  success  of  the 
whole,  that  I  must  be  excused  for  pressing  the  strict  examination  of  it 
upon  the  attention  of  the  legislature.  Nothing  so  much  fosters  the 
growth  of  crimes,  as  the  hope  in  the  culprit  that  some  defect  of  form 
will  enable  him  to  escape  ;  and  nothing  encourages  that  hope  so  much 
as  the  numerous  and  sometimes  frivolous  objections  that  are  allowed  ; 
and  this  is  called  the  tenderness  and  humanity  of  the  law! — when,  in 
fact,  it  is,  in  the  words  of  Sir  Matthew  Hale,  its  "greatest  blemish 
and  inconvenience."  The  character  of  humanity  must  be  acquired, 
not  by  facilitating  the  impunity  of  offenders,  but  by  the  strict  infliction 
of  mild  punishments,  when  guilt  has  been  proved  ;  and  it  is  a  strange 
tenderness  to  boast  of,  which  suffers  a  villain  to  escape  his  punishment 
because  a  clerk  has  omitted  a  word,  or  inserted  one  too  many,  in  copy- 
ing an  indictment. 

We  come  now  to  the  consummation  of  the  judicial  authority  in  its 
operation  upon  offences.  The  functions  of  the  judge  cease  when  he 
has  pronounced  the  sentence,  unless  extraordinary  circumstances  should 
require  him  to  communicate  with  the  chief  magistrate,  in  relation  to  an 
application  for  pardon  ;  but  even  then,  the  duty  he  performs  is  that  of 
a  witness  of  facts  disclosed  on  the  trial,  rather  than  that  of  a  judge. 
This  last  office  is  also  the  most  important.  In  a  system  of  penal  law, 
which  has  fine  and  imprisonment  for  its  chief  sanctions,  a  great  scope 
must  be  allowed  for  the  discretion  of  the  judge.  The  circumstances 
which  aggravate  or  extenuate  an  offence,  which  make  a  punishment  ruin 
to  one  individual,  which  would  not  be  felt  by  another,  are  too  numer- 
ous to  be  detailed,  and  too  much  dependent  on  events  to  be  foreseen. 
But  much  may  be  done,  although  we  confess  our  inability  to  do  all,  and 
we  ought  to  advance  in  the  path  of  improvement,  although  we  despair 
of  its  leading  us  to  perfection.  We  have  prescribed  limits  to  the  dis- 
cretion of  the  judge,  because  we  cannot  fill  up  the  interval  by  applying 
our  scale  to  unknown  events.  The  combination  of  those  events  may 
produce  different  degrees  of  depravity  for  which  we  cannot  anticipate 
the  exact  punishment  that  ought  to  be  applied;  but  we  can  foresee  and 

(a)  4  Black.  Com.  375. 


THE  CODE  OF  PROCEDURE.  239 

can  enumerate  certain  probable  circumstances  in  the  commission  of  every 
offence,  which  ought  to  aggravate  or  lessen  the  punishment,  although 
we  cannot  direct  in  what  precise  degree  they  ought  to  have  that  effect. 
This  has  been  done  in  the  code  now  offered  to  you.  It  contains  two  oppo- 
site details  of  circumstances,  which  ought  to  increase  above,  and  those 
which  ought  to  diminish  below  the  medium  rate  of  punishment,  which 
is  declared  to  be  that  which  ought  to  be  inflicted  where  none  of  these 
circumstances  exist.  Thus,  if  the  code  direct  that  the  punishment  of 
an  offence  shall  be  fine,  not  less  than  one  hundred  nor  more  than  three 
hundred  dollars;  the  medium  is  two  hundred,  which  it  is  the  duty  of  the 
judge  to  award,  if  there  be  no  circumstances  of  extenuation  or  aggrava- 
tion. The  nature  and  extent  of  the  obligation  arising  from  this  address 
to  the  judgment  of  the  court,  is  fully  explained  in  the  text,  and  the  rea- 
son for  resorting  to  it  has  more  than  once  been  adverted  to  in  the  report. 
The  fourteenth  chapter  is  devoted  to  the  forms  of  conducting  the 
ordinary  business  of  courts.  One  of  the  most  important  of  these,  is  the 
oath  or  affirmation  to  be  administered  to  jurors  and  witnesses  ;  those 
now  in  use  to  officers,  are,  for  reasons  that  will  be  given,  abolished. 
These  engagements  are  either  promissory  or  declaratory;  the  juror's  oath 
being  of  the  first,  that  of  the  witnesses  of  the  last  description:  a  breach 
of  the  promissory  oath  not  incurring,  like  that  of  the  other,  the  punish- 
ment of  perjury,  as  we  have  seen  in  the  penal  code.  Some  changes 
having  been  proposed  under  this  head,  it  will  be  necessary  to  make  a 
brief  statement  of  the  reasons  which  have  produced  them.  The  neces- 
sity of  providing  some  test  for  the  truth  of  declarations  which  were  to 
operate  as  judicial  proof,  and  some  bond  for  the  performance  of  promises, 
in  a  very  early  state  of  society,  suggested,  on  him  who  should  be 
guilty  of  a  breach  of  such  engagement,  an  imprecation  of  divine  dis- 
pleasure ;  which  was  thought  to  be  inevitable,  when  the  appeal  was 
voluntarily  made  by  the  party  upon  whom  the  vengeance  of  heaven 
was  to  fall,  if  his  promise  was  broken,  or  his  declaration  false.  A  be- 
lief in  a  Supreme  Being,  and  in  his  agency  in  punishing  evil  and  reward- 
ing virtue,  either  in  this  life  or  another,  was  essential  to  this  religious 
sanction  of  an  oath;  as  it  was  the  first,  so  it  has  generally  been  esteemed 
the  most  powerful  ;  another,  however,  may  be  said  to  be  inseparable 
from  the  first.  The  sacrilegious  wretch,  who  had  by  his  broken  vows 
incurred  the  vengeance  of  God,  could  not  retain  the  good  opinion  of 
man,  and  another  surety  was  added  in  the  loss  of  reputation,  which 
would  be  incurred  by  the  perjurer.  The  chastisement  which  he  had 
invoked  upon  his  head,  was  observed  not  always  to  follow  his  guilt  in 
this  world,  and  the  fear  of  that  which  might  follow  in  the  world  to  come, 
was  weakened  by  doubt,  by  irreligion,  and  the  prevalence  which  pre- 
sent advantage  generally  has  over  distant  and  uncertain  evil;  and  it  be- 
came necessary  to  add  the  temporal  penalties  denounced  by  human  laws 
against  perjury  ;  thus  completing  the  triple  tie  of  the  religious, 
honorary,  and  civil  sanctions  to  the  obligation  of  an  oath.  Some 
sects  from  religious  principles,  and  some  writers  from  a  specious  theory, 
have  rejected  the  religious  sanction  :  the  first,  because,  according  to 
their  tenets,  it  is  contrary  to  the  express  precept  of  the  founder  of  our 
holy  religion  ;  the  second,  for  reasons  which  it  may  be  useful  to  ex- 
amine. Religious  scruples  will  with  difficulty  yield  to  civil  laws, 
and  where  their  indulgence  does  not  operate  any  great  evil  to  society, 
a  wise  legislator  will  not  attempt  to  overcome  them.  Throughout 


240  INTRODUCTORY  REPORT  TO 

the  United  States,  therefore,  those  Christians  who  cannot  conscien- 
tiously take  an  oath,  have  the  same  credit  given  to  their  affirmation  ; 
which  derives  its  whole  force  from  its  civil  and  honorary  obligation. 
Those  who  are  for  abolishing  the  religious  sanction,  say,  that  it  is  not 
only  useless  but  injurious,  and  even  profane  :  useless,  because  where 
religious    motives    produce  a  determination   to   tell  the  truth,  they 
will  always  operate,  whatever  be  the  form  of  the  engagement — and 
where  there  is  no  religion,  the  form  can  have  no  effect.     Injurious,  be- 
cause it  creates  a  false  confidence  in  the  declaration  of  one  who  has  no 
religious  sentiment,  and  adds  nothing  to  the  credit  of  him  who  has;  be- 
cause religion  cannot  be  introduced  in  civil  institutions  without  weaken- 
ing their  effect ;  because,  with  many,  religion  consists  in  form,  and  if 
that  form  be  varied  in  the  slightest  degree,   the  religious  obligation  is 
not  incurred,  and  the  other  obligations,  being  considered  as  inferior, 
are  overlooked  :  and  because,  the  oath  being  a  religious  ceremony,  was 
subject  to  ecclesiastical  control,  might  be  dispensed  with,  and  its  breach 
pardoned  or  expiated(#).     Profane,  not  only  because  it  is  in  opposition 
to  the  plain  and  express  command  of  the  Scripture,  but  because  it  sup- 
poses a  power  in  him  who  imposes,  or  him  who  takes  the  oath,  to  direct 
Almighty  vengeance  at  his  pleasure,  and  often  for  trifling  or  even  unwor- 
thy objects.   When  properly  developed  and  coolly  considered,  these  ob- 
jections have  weight;  and  if  I  were  now,  for  the  first  time,  devising 
the  formula  of  a  judicial  asseveration  to  declare  the  truth,  I  think  1 
should  omit  the  conditional  renunciation  of  God's  favour,  which  it  now 
contains.     The  general  impression  now  existing  of  its  necessity,  the 
abandonment  of  all  pretension  to  right  by  any  ecclesiastical  power  in 
our  day  to  dispense  with  its  obligation,  and  the  danger  of  a  sudden 
change,  have  combined  to  induce  me  to  retain  this  part  of  the  oath  in 
ordinary  cases  ;  but  with  the  proviso  of  extending  the  right  of  dispens- 
ing with  it  in  favour  of  all  those  who  declare  they  have  religious  scruples, 
in  the  same  manner  that  the  same  dispensation  is  now  given  to  Quakers 
and  Memnonists.    But  while  this  part  of  the  form  has  been  retained,  it 
was  to  be  feared,  and  experience  shows  that  there  is  some  ground  for 
the  apprehension,  that  there  are  men  who  do  not  feel  the  force  of  this 
obligation,  and  are  ready  to  risk  the  legal  consequences,  but  who  yet 
might  be  restrained  if  an  address  were  expressly  made  to  their  honour 
and   integrity.     There  are   perverse   and   extraordinary  ideas   enter- 
tained on  this  subject:  one  will  conceive  the  oath  not  binding  on  his 
conscience,  if  administered  on  any  other  book  than  the  New  Testament; 
a  Jew  may  think  it  of  no  force  unless  the  old  be  presented  to  him;  this 
man  conceives  himself  obliged  to  tell  the  truth  only  when  he  declares 
that  he  will  do  so  with  uplifted  hand;  another,  who  does  not  mind  kiss- 
ing the  book,  as  he  irreverently  styles  it,  will  be  scrupulously  exact 
in  what  he  declares  upon  his  honour.     These  considerations  have  in- 
duced me  to  incorporate  into  the  form  of  the  oath  a  clause  to  bind  those 
of  the  last  description. 

As  has  been  observed,  all  persons  belonging  to  any  sect,  having  re- 
ligious scruples  to  take  an  oath,  may  substitute  an  affirmation.  The 

(a)  Dumont  gives  an  extraordinary  instance  of  this  power.  Clement  VI.,  he  says,  granted 
to  John  the  III.  of  France,  and  Jane  his  wife,  and  to  all  their  successors,  the  right,  without 
incurring  any  sin,  to  violate  their  promises  and  oaths,  as  well  those  they  had  already  made 
as  those  they  might  thereafter  make,  provided  it  was  not  their  interest  to  keep  them,  and 
provided  also  that  they  commuted  the  obligation  in  some  work  of  piety. 


THE  CODE  OF  PROCEDURE.  241 

declaration  of  the  party  that  he  does  belong  to  such  sect  is  sufficient 
evidence  of  the  fact ;  and  although  that  declaration  be  untrue,  the  breach 
of  the  affirmation  carries  with  it  the  consequences  that  the  breach  of  an 
oath  would  have  done. 

A  clause  is  added  to  the  affirmation  referring  expressly  to  its  legal 
sanction. 

To  avoid  the  frequent  repetition  of  oaths,  in  judicial  proceedings, 
none  are  administered  to  a  sworn  officer  when  called  on  to  do  a  parti- 
cular duty,  such  as  going  out  with  a  juror,  or  the  like. 

To  give  greater  solemnity  to  the  obligation,  the  form  is  repeated  by 
the  person  to  whom  it  is  administered,  during  which  strict  silence  is 
to  be  observed  by  all  those  not  concerned  in  taking  or  administering  it, 
and  no  other  business  is  to  be  transacted  in  court  during  the  ceremony. 
The  oaths  and  affirmations  of  jurors  and  witnesses  are  so  framed,  as  to 
bring  their  respective  duties  forcibly  before  them,  as  well  as  the  penal- 
ties attending  a  neglect  of  their  performance  ;  and  an  endeavour  is 
made  to  enforce  the  necessity  of  preserving  the  requisite  solemnity  in 
a  ceremonial  generally  treated  with  the  utmost  levity,  but  which  re- 
quires every  aid  that  an  imposing  form  can  give  to  enforce  the  idea  of 
its  obligation.  One  peculiarity  in  the  oath  of  a  witness  ought,  perhaps, 
to  be  pointed  out.  At  present  he  is  sworn  to  declare  the  "  whole, 
truth,"  yet  when  he  proceeds  to  comply  with  this  obligation,  he  is, 
perhaps,  stopped  by  the  counsel  or  the  court,  and  told,  "what  you 
are  now  about  to  say  is  not  legal  evidence,  and  although  it  is  part  of  the 
truth,  the  whole  of  which  you  have  sworn  to  tell,  yet  you  are  not  per- 
mitted to  tell  what  we  have  obliged  you  to  swear  that  you  would  tell." 
This  incongruity  is  remedied  by  a  clause  in  the  proposed  form  of  the 
oath. 

The  three  remaining  sections  of  this  chapter  regulate  the  manner  of 
opening  and  adjourning  the  court,  keeping  the  minutes,  calling  the 
jurors,  witnesses  and  officers,  and  imposing  fines  for  their  non-attend- 
ance; and  to  supply  any  omission  in  this  part  of  the  code,  authority 
is  given  to  the  courts  to  make  additional  rules  of  practice  ;  but  they 
are  to  be  submitted  immediately  after  to  the  legislature,  to  the  end  that 
they  may  prevent  any  infringement  of  the  law,  and  preserve  a  uni- 
formity in  the  form  of  proceeding  in  all  the  different  courts. 

The  necessary  officers  of  the  courts  are  enumerated  in  a  succeeding 
chapter,  and  their  several  duties  specially  pointed  out.  The  only  ad- 
dition to  those  now  employed,  is  the  reporter  ;  his  duties  are,  to  make 
reports  of  all  causes  that  are  tried,  and  all  points  of  law  that  are  de- 
termined in  the  court,  and  to  publish  them  at  stated  times,  and  to 
make  regular  returns  of  all  commitments,  accusations,  indictments,  in- 
formations and  trials,  in  such  form  as  to  give  every  desirable  informa- 
tion of  the  state  of  crime  and  criminal  jurisprudence  in  his  district. 
These  returns  are  to  be  made  to  the  governor,  to  be  by  him  laid  before 
the  legislature.  A  mass  of  information  will  thus  be  collected,  which 
will  be  of  the  utmost  value  in  future  legislation(a). 

Although  publicity  is  of  the  highest  importance  in  the  administration 

(a)  Both  in  France  and  in  England  these  returns  are  considered  as  of  the  highest  im- 
portance, and  the  greatest  pains  are  taken  to  make  them  as  minute  as  possible.     The  tables 
of  the  state  of  crime  in  France,  are  more  perfect  in  their  form  than  any  that  have  any  where 
been  produced. 
2F 


242  INTRODUCTORY  REPORT  TO 

of  justice,  yet  public  morals  require  that  certain  investigations  should 
form  exceptions  to  this  rule.  A  chapter,  therefore,  provides  that,  in 
certain  enumerated  cases,  the  details  of  which  would  only  foster  pas- 
sions injurious  to  society,  or  wound  the  feelings  of  the  innocent  con- 
nexions of  the  parties,  no  persons  hut  the  necessary  attendants  and 
officers  of  the  court,  the  witnesses,  jurors,  and  a  limited  number  of 
persons  indicated  by  the  party  and  the  prosecutor,  shall  be  admitted  at 
the  trial,  and  that  no  report  of  the  details  shall  be  published. 

A  short  chapter  directs,  that  until  the  system  by  which  magistrates 
and  officers  of  justice  are  remunerated  for  their  services,  by  the  pay- 
ment of  fees,  be  abolished,  the  state,  and  not  the  defendant,  shall  pay 
costs  in  all  cases  of  discharge  for  want  of  prosecution,  or  on  acquittal  ; 
and  that,  in  cases  of  conviction,  the  court  may  either  exonerate  the 
defendant  from  the  payment  of  them,  or  make  such  an  apportionment 
as  may  suit  the  circumstances  of  the  case  ;  and  no  person  is  to  be  de- 
tained for  the  payment  of  costs,  until  after  a  discussion  of  his  property, 
and  then  only  for  the  term  limited  in  the  case  of  fines. 

This  finishes  the  review  of  that  part  of  the  code  which  prescribes 
the  ordinary  course  of  procedure  in  criminal  trials.  The  concluding 
chapter  of  this  title  relates  to  a  subject  which  could  not  be  brought  pro- 
perly under  any  of  the  preceding  heads. 

The  propriety  of  allowing  any  lapse  of  time  to  prevent  the  prose- 
cution of  an  offence,  has  frequently  been  called  in  question,  and  for 
such  cogent  reasons  as  have  induced  the  allowance  of  prescription  only 
in  the  following  cases  :  misdemeanors  for  private  offences  ;  crimes 
which  can  only  be  prosecuted  on  the  complaint  of  designated  persons  ; 
attempts  to  commit  crimes  when  not  accompanied  by  any  offence.  This 
plea  is  allowed  in  the  first  case,  because  the  evil  of  the  offence  falling 
chiefly  on  an  individual,  it  must  be  presumed  to  have  been  too  trivial 
to  attract  the  notice  of  public  justice,  if  it  be  not  prosecuted  within 
the  limited  time  ;  but  this  presumption  is  rebutted  by  showing  that  the 
party  injured  was  out  of  the  state,  or  prevented  by  force  or  threats 
from  making  the  complaint.  The  same  reason  partially  applies  to  the 
second  case,  Crimes,  which  can  only  be  prosecuted  by  designated  per- 
sons ;  as  the  prosecution  could  only  be  made  by  them,  the  delay  will 
be  presumed  to  have  arisen  either  from  a  determination  not  to  accuse, 
or  for  the  purpose  of  taking  some  unfair  advantage.  The  same  causes 
that  are  enumerated  under  the  third  head  destroy  the  prescription  ; 
attempts  to  commit  crimes  are  prescribed,  because  they  approach  so 
nearly  in  their  nature  to  private  misdemeanors,  which  enjoy  that  pri- 
vilege, that  it  appeared  unjust  to  make  any  distinction  ;  but  chiefly  be- 
cause no  offence  having  been  actually  committed,  and  the  sole  question 
being  that  of  intent,  great  injustice  might  ensue  from  instituting  an  in- 
quiry of  that  nature,  after  a  lapse  of  many  years.  All  other  offences  may, 
at  any  time,  be  prosecuted,  because,  allowing  them  to  be  barred,  would 
hold  out  a  reward  to  ingenious  villany  and  address  in  concealment  ; 
and,  as(a)  has  been  very  forcibly  expressed  ;  to  show  the  absurdity 
of  suffering  any  lapse  of  time  to  bring  impunity,  only  suppose  the  law 
conceived  in  these  terms,  "  but  if  the  robber,  the  murderer,  the  thief, 
can  during  twenty  years  elude  the  vigilance  of  justice,  their  address 
shall  be  recompensed,  their  safety  assured,  and  the  proceeds  of  their 
crime  legalized  in  their  possession." 

(a)  Traite  de  Legislation,  torn.  1.  p.  148 


THE  CODE  OF  PROCEDURE.  243 

The  third  and  last  title  of  this  book  contains  directions  for  the  mode 
of  procedure  in  cases  not  immediately  connected  with  the  procedure 
in  courts.  The  first  chapter  relates  to  inquests  on  dead  bodies,  found 
under  circumstances  that  may  induce  the  suspicion  of  homicide.  These 
do  not  materially  vary  from  those  now  in  use.  The  utility  of  this 
institution  is  apparent,  and  has  been  tested  by  experience.  The  pub- 
licity of  the  proceeding  destroys  unjust  suspicion,  which,  but  for  this 
inquiry,  the  innocent  would  have  no  means  of  showing  to  be  false  ;  and 
it  is  eminently  calculated  to  bring  the  guilty  to  punishment.  The  in- 
quiry immediately  made,  before  any  means  can  be  devised  for  conceal- 
ment, the  view  of  the  body,  the  examination  of  skilful  professional  men, 
the  power  to  compel  the  attendance  of  witnesses,  and  the  concourse  of 
neighbours  and  friends  bringing  with  them  proof  of  circumstances  that 
would  escape  any  more  tardy  or  less  public  inquiry,  are  most  power- 
ful means  for  bringing  to  light  crimes  often  committed  against  human 
life.  The  inquest,  however,  has  not,  as  in  England,  the  effect  of  an 
indictment,  because  the  want  of  time  and  professional  aid  frequently 
render  it  defective  ;  but  it  may  be  made  the  foundation  for  one,  and, 
with  all  the  proceedings,  is  to  be  laid  before  the  grand  jury,  in  all  cases 
where  death  is  found  to  have  been  occasioned  by  a  crime.  The  coroner 
has  the  same  powers  conferred,  and  duties  enjoined,  as  belong  to  other 
magistrates,  in  cases  of  examination,  bail  and  commitment. 

The  second  chapter  regulates  the  mode  in  which  the  examination  of 
a  body  shall  be  made  in  cases  of  suspected  murder.  It  gives  the  power 
to  a  family  meeting,  or  to  a  magistrate,  and  directs  the  manner  of  pro- 
ceeding in  the  investigation.  There  are  no  provisions  in  our  law  on 
this  subject,  but  it  was  deemed  one  that  required  legislative  attention. 
The  fraudulent  appropriation  of  property  found,  being  created  an  of- 
fence, distinguished  from  theft,  with  which  it  is  frequently  confounded, 
by  extending  the  doctrine  of  constructive  possession,  it  was  thought 
just  and  requisite  that  the  law  should  direct  the  honest  finder  in  what 
manner  to  proceed,  with  respect  to  the  property  found,  so  as  to  avoid 
unjust  suspicion,  by  observing  the  rules,  and  to  facilitate  the  convic- 
tion of  the  dishonest  by  his  breach  of  them  :  this  forms  the  subject  of 
the  third  chapter. 

The  fourth  directs  the  mode  in  which  vagrancy  may  he  proved, 
and  under  what  circumstances  vagrants  may  be  committed  to  the 
House  of  Industry.  This  class  of  men,  who  hang  on  to  society 
rather  than  belong  to  it,  although  not  absolutely  criminals,  are  yet  so 
near  the  verge  of  it,  and  are  so  generally  the  nursery  for  criminals  of 
every  description,  that  preventive  justice  is  forced,  with  respect  to  them, 
to  measures  not  strictly  in  unison  with  its  usual  course  ;  but  this  sub- 
ject will  be  so  fully  discussed  in  the  Introductory  Report  to  the  Code  of 
Prison  Discipline,  to  which  it  properly  belongs,  that  the  legislature  are 
respectfully  referred  to  that  part  of  the  system,  as  well  for  the  measures 
recommended  for  the  employment,  restraint  and  reformation  of  these 
people,  as  for  the  reasons  which  suggested  these  measures. 

In  criminal  proceedings,  no  question  presents  itself  which  is,  at  times, 
more  difficult  of  solution,  or  more  important  to  be  accurately  answer- 
ed, than  that  of  alleged  insanity.  When  it  occurs  as  a  defence  on  a 
trial  of  the  merits,  little  more  need  be  provided  by  law,  than  to  direct, 
that  when  ascertained  to  have  existed  at  the  time  of  the  act,  it  takes 
away  an  essential  quality  of  guilt.  But  when  the  alienation  of  mind  is 


244  INTRODUCTORY  REPORT  TO 

alleged  to  have  occurred  after  the  act  but  before  the  trial,  after  the  trial 
but  before  the  judgment,  after  the  judgment  but  before  or  during  the 
execution  of  the  sentence,  no  mode  of  trial  of  the  fact  is  provided  by 
]aw;  and  yet,  at  each  of  these  periods,  particular  provisions  are  necess- 
ary, as  well  to  ascertain  the  fact,  as  to  direct  what  is  to  be  the  conse- 
quence of  its  being  found  to  exist.  This  is  done  by  a  chapter  in  this 
title,  and  by  it  an  omission  in  our  law,  important  to  justice  and  to  hu- 
manity, is  supplied. 

The  Code  of  Crimes  and  Punishments  having  directed,  in  order  to 
avoid  collusive  prosecutions  for  adultery,  that  in  all  prosecutions  for  this 
offence  against  a  supposed  adulterer,  the  offending  wife  shall  be  joined, 
and  having  referred  to  this  code  for  the  manner  of  conducting  it,  it  is 
directed,  that  where  the  defendant  is  so  charged,  shall  have  been  cited 
or  arrested,  but  shall  not  appear,  that  an  attorney  shall  be  named  to 
represent  him,  and  that  the  trial  shall  proceed  in  his  absence  ;  and  that 
if  he  have  left  the  state,  so  as  not  to  be  served  with  process,  a  warrant 
shall  issue  and  be  renewed  from  time  to  time  until  the  trial,  which,  if 
he  do  not  appear,  may  proceed  against  the  wife  alone. 

The  collection  of  small  fines,  imposed  by  courts,  is  not  now  sufficient- 
ly enforced.  The  code  remedies  this  defect,  requires  frequent  returns 
by  the  collecting  officers,  and  makes  it  the  duty  of  the  state  treasurer 
to  prosecute  such  of  them  as  are  delinquent,  and  to  carry  all  such  sums, 
as  may  be  collected,  to  the  credit  of  the  "  Compensation  Fund,"  which 
has  been  referred  to  in  the  beginning  of  this  Report,  where  it  is  spo- 
ken of  as  the  means  of  paying  the  premiums  for  extraordinary  services 
and  providing  the  marks  of  honorary  rewards;  it  is  here  also  burthened 
with  an  indemnity  directed  to  be  paid  to  all  those  who  shall  receive,  on 
their  being  discharged  before  trial  of  an  alleged  offence,  a  certificate 
from  the  judge,  or  from  the  jury  who  shall  acquit  them  on  the  trial, 
that  no  improper  conduct  gave  reasonable  ground  for  suspicion.  This 
indemnity  is  granted  on  the  ground  that  society  is  bound  to  compensate 
all  such  evils  as  are  necessarily  incurred  for  its  safety,  where  they  are 
not  the  result  either  of  an  obligation  binding  on  all  the  citizens  in  gen- 
eral, such  as  assisting  the  civil  officers  in  preserving  the  peace  ;  or  of 
losses  so  great  in  amount  and  general  in  their  nature  as  to  become  too 
burthensome  to  the  rest  of  the  community,  such  as  granting  indemnity 
for  the  ravages  committed  by  an  invading  enemy,  or  the  conflagration 
of  a  city  to  prevent  its  falling  into  his  hands.  The  injury  received  by 
a  groundless  accusation  is  of  another  character.  It  is  not  the  result  of 
any  duty,  and  it  can  be  compensated  without  any  great  sacrifice.  When 
the  prosecution  is  malicious  as  well  as  ill-founded,  the  state  is  exonerat- 
ed from  this  burthen,  for  the  loss  was  not  incurred  for  its  benefit ;  and 
the  indemnity  maybe  recovered  against  the  malicious  prosecutor.  The 
state  is  only  bound  to  pay  when  there  was  reasonable  ground  for  sus- 
picion, but  which  did  not  arise  from  any  negligence  or  imprudence  of 
the  party  accused.  The  amount  of  the  compensation  is  to  be  fixed  by 
the  judge,  but  under  limits  which  effectually  prevent  its  being  made  the 
object  of  collusive  speculation,  while  it  affords  the  relief  which  justice 
requires  to  the  poor  and  the  oppressed. 

Four  General  Provisions  are  inserted  at  the  conclusion  of  this 
book.  By  the  first  it  is  declared,  that  no  omission  of  any  mat- 
ter of  form  presented  in  this  system,  nor  any  departure  from  the 
forms  given  for  proceeding  under  it,  shall  render  the  proceeding  void, 


THE  CODE  OF  PROCEDURE.  245 

unless  it  be  so  specially  provided  ;  or  unless  the  departure  from  the 
form  has  caused  some  injury  to  the  party  complaining  of  it  The  in- 
sertion of  this  article  is  another  attempt,  and  no  good  system  can  con- 
tain too  many,  to  counteract  the  constant  and  fatal  tendency  to  sacri- 
fice substance  to  form.  The  second  was,  perhaps,  superfluous  ; 
that  when  a  particular  and  a  general  provision  conflict,  the  former 
must  prevail.  A  rule  of  true  construction  would  sufficiently  enforce  it; 
but  true  rules  of  construction  are  not  always  those  that  are  adopted. 
Although  a  strict  adherence  to  the  distribution  of  the  system  would 
have  required  that  all  offences  whatever,  as  well  as  the  punishment  as- 
signed to  them,  should  have  found  their  place  in  the  Code  of  Crimes 
and  Punishments,  and  not  elsewhere;  yet  it  was  deemed  expedient  to 
depart  from  this  rule  in  many  cases,  where  a  penalty  is  annexed  to 
the  non-observance  of  a  rule  laid  down  in  any  of  the  other  codes.  The 
inconvenience  of  a  constant  reference  from  the  one  code  to  the  other 
would  have  been  an  inevitable  evil,  but  one  of  the  least  attendant  on 
the  transfer  of  the  definition  of  the  offence  to  the  former.  The  two 
subjects,  in  their  nature  distinct,  would  have  been  so  amalgamated  as 
to  create  a  greater  confusion  than  that  which  it  is  the  intention  of  the 
system  to  correct.  Certain  offences,  then,  being  necessarily  defined 
by  this  code,  and  the  punishment  denounced,  the  third  provision  of 
this  chapter  became  necessary,  which  directs  that  all  offences,  created 
by  this  code  or  the  Code  of  Reform  and  Prison  Discipline,  shall  be 
prosecuted  and  tried  in  the  same  manner  with  those  which  are  created 
by  the  Code  of  Crimes  and  Punishments.  The  last  article  gives  a  rule 
for  calculating  the  time  allowed  by  the  code  for  certain  notices  and 
other  proceedings. 

The  concluding  book  of  this  code  contains  forms  for  all  the  proceed- 
ings which  are  directed  or  authorized  by  its  preceding  parts.  In 
framing  them,  which  has  been  done  with  much  care,  the  object  kept 
constantly  in  view,  was  to  unite  brevity  with  so  much  certainty  and 
precision  as  would  secure  the  party  from  any  possibility  of  mistake, 
as  to  the  precise  fact  of  which  he  is  accused.  If  the  reporter  has 
been  successful  in  this,  he  has  attained  a  most  important  object,  by 
closing  the  door  against  one  of  the  greatest  evils  in  penal  jurisprudence. 
He  offers  this  branch  of  the  system,  with  the  same  diffidence  of  his 
own  powers  that  attended  the  presentation  of  the  first ;  the  same  hope, 
that  what  is  good  in  it  may  be  preserved,  and  what  is  bad  corrected; 
and  the  same  firm  reliance  on  the  industry  and  patient  research  of  the 
legislature  in  examining,  and  on  their  wisdom  in  making  a  decision  on 
its  merits. 


INTRODUCTORY  REPORT 


THE   CODE   OF   EVIDENCE, 


No  branch  of  jurisprudence  requires  greater  certainty  and  more  sim- 
plicity in  its  provisions,  than  that  of  judicial  evidence.  But  there  is 
none  in  which  so  little  of  either  is  to  he  found.  The  reason  is,  that, 
with  fewer  exceptions  than  exist  in  any  other  division  of  the  science, 
it  has  been  abandoned  to  the  vacillating  authority  of  decisions,  for  its 
creation  and  amendment,  without  any  superintendence  of  the  legisla- 
tive power.  This  was  a  natural  consequence  of  the  transition  from  the 
semi-barbarism  of  the  middle  ages,  to  the  more  improved  state  of  the  sci- 
ence in  modern  times.  During  the  period  when  the  divine  power 
was  invoked,  and  supposed  specially  to  interpose  in  litigated  questions, 
by  protecting  innocence  and  making  justice  prevail  in  the  ordeal  and 
the  battle,  human  testimony  would  of  course  be  considered  of  minor 
importance.  In  proportion,  however,  as  these  miraculous  interven- 
tions of  the  Deity  ceased  to  obtain  credit,  and  the  agency  of  human 
justice  and  discretion  was  called  in  to  supply  its  place,  it  became  ne- 
cessary to  consider  what  evidence  ought  to  be  received  in  order  to  di- 
rect them.  But  no  legislative  provision  had  been  made  for  this  change, 
which  was  imperceptibly  produced  as  the  mists  of  ignorance  and  the 
veil  of  superstition  were  slowly  withdrawn.  In  every  case  in  which 
the  witness  was  substituted  for  the  champion,  and  the  ordeal  of  jus- 
tice for  that  of  the  elements,  the  court  was  obliged  to  make  some  rule 
for  securing  the  appearance  of  the  witness  ;  interrogating  him  to  come 
at  the  truth  ;  determining  what  persons  ought  to  appear  in  that  charac- 
ter, and  what  degree  of  credit,  under  different  circumstances,  was  due 
to  their  testimony. 

In  the  earlier  periods  of  jurisprudential  history  in  Europe,  the  dis- 
tinction between  oral  and  written  evidence  can  scarcely  be  observed. 
But  when  literary  education  became  more  common,  writing  was  pre- 
scribed by  the  legislative  power,  in  some  cases,  as  a  check  upon  the  in- 
accuracy of  testimonial  evidence  j  and  as  the  few  laws  it  was  found  ne- 
cessary to  pass  were  couched  in  general  terms,  and  frequently  in  ob- 
scure language,  the  judges  thought  themselves  authorized  to  supply  de- 
ficiencies, and  sometimes  to  restrict  what  they  deemed  the  too  com- 
prehensive words  of  the  text ;  and  thus  the  law  of  written  as  well  as  of 
testimonial  evidence  became  the  creation  of  judicial  decisions,  not  of 
legislative  acts.  It  is,  however,  easier  to  trace  its  origin  with  tolerable 


248  INTRODUCTORY  REPORT  TO 

certainty  than,  with  any  probability,  to  account  for  some  of  the  extraordi- 
nary features  which  distinguish  it.  There  is  such  a  moral  beauty  in  truth, 
it  is  so  necessary  to  us  in  all  our  intercourse  with  each  other,  that  we  have 
been  endowed  by  our  beneficent  Creator  with  a  love  for  it,  which,  if  not 
innate,  is  necessarily  produced  by  the  circumstances  in  which  he  has 
placed  us(a).  Man  never  swerves  from  truth  without  some  temptation, 
some  real  or  imaginary  good,  that  he  promises  himself  from  the  falsehood. 
Doubt  even  on  matters  of  little  moment,  is  an  uneasy  sensation :  and  there 
is  a  corresponding  satisfaction  in  that  state  of  the  mind  which  results  from 
a  conviction  of  truth;  so  that,  as  in  the  ordinary  affairs  of  life,no  one  makes 
an  assertion  of  fact,  but  with  the  intent  of  producing  belief;  so  no  one 
hears  it  without  a  desire,  sometimes  imperceptible  and  involuntary,  to 
be  convinced  of  its  truth  or  falsehood.  But  this  conviction  can  only  be 
produced  by  evidence.  As  long,  therefore,  as  he  is  deprived  of  any 
evidence  which  is  known  or  suspected  to  exist,  so  long  will  the  uneasy 
state  of  doubt,  in  a  greater  or  less  degree,  continue.  If  this  be  true  in 
relation  to  matters  where  neither  interest  nor  duty,  but  a  mere  love  of 
truth,  call  upon  us  to  decide;  how  much  more  strongly  will  the  desire 
be  felt  when  life  or  fortune  depends  on  the  correctness  of  the  decision. 
Yet  it  is  precisely  in  cases  where  this  longing  after  truth  should  be  grati- 
fied, that  is  to  say,  in  litigated  questions,  that  the  evidence  by  which  it 
is  to  be  ascertained  is  most  restricted.  Every  where  else,  all  sources, 
even  the  most  suspicious,  are  examined;  he  who  is  to  judge  rely  ing  on 
his  own  power  to  discriminate;  here  alone  he  is  taught  to  distrust  that 
power,  to  reject  all  evidence  that  may  possibly  lead  him  astray,  and 
where  he  cannot  be  guided  by  the  full  blaze  of  the  noonday  sun,  to  pre- 
fer utter  darkness  to  the  twilight,  in  which  he  might  have  discovered  his 
path.  To  trace  this  leading  feature  in  our  law  of  evidence  to  its  original 
causes,  would  be  rather  a  curious  disquisition  than  one  leading  to  im- 
portant practical  results.  It  most  probably  is  derived  to  us  from  the 
civil  and  canon  law,  where  this  principle  is  carried  to  a  most  extrava- 
gant length;  and  where  the  secret  examination  of  witnesses  by  judges 
unacquainted  with  the  circumstances  of  the  case,  made  the  risk  of  de- 
ception very  great;  where  there  was  no  confrontation,  no  personal 
cross-examination,  no  publicity,  and  where  the  parties  themselves  were 
not  allowed  to  be  present,  detection  was  rendered  so  difficult,  that  it  af- 
forded a  plausible  pretext  for  absolute  exclusion  in  all  suspicious  cases. 
The  compass  of  this  report  will  only  admit  of  a  reference  to  such  re- 
strictions as  now  exist,  and  a  notice  of  those  which  it  has  been  deemed 
necessary  to  retain  or  to  abrogate,  with  the  reasons  by  which  the  alter- 
ations are  supported.  These  will  be  developed  as  we  proceed  with  the 
details  of  the  system. 

This  code  begins,  as  those  which  preceded  it  have  done,  by 
an  Introductory  Title,  laying  down  rules  and  making  explanations 
to  avoid  circumlocution,  and  to  give  the  perspicuity  necessary  to 
a  full  understanding  of  the  subsequent  provisions.  Two  of  the  ar- 
ticles are  of  a  different  character,  and  demand  particular  notice.  They 
are  intended  to  check  the  legislation  of  the  courts,  and  to  provide  for 
the  progressive  amelioration  of  the  code  by  the  General  Assembly,  the 
only  legitimate  power  for  that  purpose;  while  the  right  of  pointing  out 
defects,  and  suggesting  improvements,  is  conferred  on  the  judges.  As  the 
law  formerly  stood,  the  whole  law  of  evidence,  with  very  few  excep- 

(a)  In  primis,  hominis  est  ptopria  VERI  inquisitio  atque  invcstigatio.— Cicero.          ] 


THE  CODE  OF  EVIDENCE.  249 

tions,  was,  as  we  have  seen,  the  work  of  the  court,  over  which  the  legis- 
lature very  rarely  exercised  even  a  corrective  power;  more  frequently 
the  courts  corrected  the  statutory  provisions;  and  by  their  rules  of  con- 
struction, for  enlarging  and  restricting  the  operation  of  the  written  law, 
assumed  and  exercised,  by  whatever  name  it  may  be  called,  a  legisla- 
tive power.  As  this  is  a  part,  nay  the  very  foundation  of  the  common 
law,  the  observation  is  not  intended  as  a  reproach  to  the  judiciary  of 
the  country  from  whence  that  law  is  derived.  But  it  cannot  be  too  often 
repeated,  that  in  our  constitution(a)  it  is  not  only  affirmatively  declared, 
that  there  shall  be  three  separate  branches  of  government — executive, 
legislative  and  judiciary;  but  negatively,  that  the  duties  of  no  two  of 
these  branches  shall  be  exercised  by  the  same  persons.  Every  exer- 
cise of  legislative  power  by  the  judiciary  is,  in  this  state,  unconstitu- 
tional, and  it  is  the  duty  of  the  legislature  to  check  it.  But  as  all  human 
works  are  attended  with  a  greater  or  less  degree  of  imperfection,  it  must 
happen  that  the  operation  of  laws  will  be  found  to  work  injustice;  either 
by  embracing,  under  general  expressions,  cases  not  intended  to  come 
within  them,  or,  by  a  too  restricted  phraseology,  not  providing  for  other 
cases  which  it  was  their  evident  object  to  include.  These  defects  in 
laws  gave  rise  to  the  rules  of  construction  before  alluded  to,  by  one  of 
which  the  court  were  directed  to  place  themselves  in  the  situation  of 
the  legislature(d),  to  inquire  whether,  if  the  case  before  them  had  pre- 
sented itself  to  the  mind  of  the  lawgiver,  he  would  have  extended  or 
restricted  the  words  of  his  law  so  as  to  provide  for  it  and  others  of  a 
similar  nature.  This  is  called  consulting  the  spirit  of  the  statute  ;  and 
the  rule,  as  I  have  stated  it,  is  every  day  referred  to  and  received  in 
our  courts.  While  it  is  evident  that  this  is  the  exercise  of  legislative 
power,  inasmuch  as  it  extends  or  restricts  the  operation  of  a  statute,  it 
cannot  be  denied  that  the  defects  of  all  laws  are  best  discovered  in  their 
operation,  and  that,  as  to  all  those  which  relate  to  jurisprudence,  the 
judges  are  the  persons  best  qualified  to  point  them  out,  although,  by 
our  institutions,  they  are  not  authorized  to  provide  the  remedy. 

The  object  of  the  two  articles  now  under  consideration  is  to  secure 
the  advantages  to  be  derived  from  the  experience  and  wisdom  of  the  judges 
in  the  suggestion  of  defects,  while  the  remedy  is  reserved  to  the  legis- 
lature, the  only  power  to  which  it  can  consistently  with  the  constitu- 
tion be  referred.  The  first  of  these  articles  relates  to  cases  in  which 
any  positive  provision  of  the  code,  for  the  admission  or  exclusion  of 
evidence,  is  found  to  operate  improperly,  either  to  the  prejudice  of  the 
accused,  or  the  ends  of  public  justice  in  criminal  proceedings,  or  to  the 
injury  of  any  party  in  a  civil  suit.  In  every  such  case  the  court  is  di- 
rected to  make  an  accurate  report  of  the  same  to  the  legislature,  with 
the  reasons  for  thinking  the  law  imperfect  or  unjust  in  its  operation. 
Should  the  general  assembly  coincide  in  opinion  with  the  court,  the 
proper  amendment  will  be  made  to  the  code  under  its  appropriate 

(a)  Art.  1,  $  1.  The  powers  of  government  of  the  state  of  Louisiana  shall  be  divided  into 
three  distinct  departments,  and  each  of  them  shall  be  confided  to  a  separate  body  of  magis- 
tracy, to  wit — those  which  are  legislative,  to  one — those  which  are  executive,  to  another — 
and  those  which  are  judiciary,  to  another. 

$  2.  No  person  or  collection  of  persons,  being  one  of  those  departments,  shall  exercise 
any  power  properly  belonging  to  either  of  the  others,  except  in  the  instances  hereinafter  ex- 
pressly directed  or  permitted. — Constitution  of  the  stale  of  Louisiana. 

(b)  Plowden,  469. 

2  G 


250  INTRODUCTORY  REPORT  TO 

head;  and,  in3tead  of  a  judicial  decision  of  doubtful  authority,  obliga- 
tory or  not  on  their  successors,  or  even  on  themselves,  as  they  shall 
think  fit,  and  only  to  be  known  through  voluminous  and  costly  reports, 
we  shall  have  positive  law,  easily  understood,  to  be  found  in  in  its  pro- 
per place,  comprised  in  a  few  lines,  and  binding  on  the  courts  as  well  as 
the  community.  If,  in  consequence  of  such  imperfection,  the  accused 
shall  have  been  acquitted,  judgment  in  his  favour  must  be  entered  without 
waiting  for  any  further  legislative  proceedings,  for  it  would  be  unjust  to 
subject  an  individual  to  the  vexation  of  a  second  trial  for  a  defect  in  the 
law,  even  if  the  amendment  required,  should  be  one  that  could  not 
come  within  the  description  of  a  retro-active  law.  But  if  the  conse- 
quence was  an  unjust  conviction,  or  verdict  in  a  civil  suit,  it  is  directed 
that  no  judgment  shall  be  pronounced  until  the  end  of  the  session 
after  the  report  shall  have  been  made;  when,  if  the  provision  is  altered, 
new  trials  shall  in  both  cases  be  ordered.  If  no  change  is  made,  it  is 
evidence  the  legislature  do  not  coincide  in  opinion  with  the  court,  and  do 
not  think  the  operation  of  their  law  improper  or  unjust;  and  as  theirs  is 
the  supreme  will,  the  courts  must  carry  it  into  execution. 

The  first  of  these  two  articles  having  thus  provided  for  the  recon- 
sideration and  amendment  of  the  code,  in  such  provisions  as  seem  unjust 
or  defective  in  their  operation,  the  second,  in  like  manner,  gives  the 
remedy  for  omissions.     In  all  cases  where  legislative  enactments,  or 
former  decisions,  gave  no  rule  on  the  subject  of  the  admission  or  exclu- 
sion of  evidence,  the  courts  necessarily,  as  has  been  observed,  supplied 
the  omission.     They  were  obliged  to  admit  or  reject  the   evidence 
offered,  and,  having  no  legislation  provided,  were  forced  to  decide  ac- 
cording to  their  discretion,  without  one.     After  the   adoption  of  this 
article,  such  an  anomaly  will  no  longer  exist  in  our  law.     The  legisla- 
tor and  the  judge  will  each  perform  his  proper  duties,  and  no  excuse 
will  exist  for  the  one  to  usurp,  or  the  other  to  neglect  them;  for  in  every 
case  where  evidence  is  offered,  and  no  rule  is  provided  to  direct  the 
judge  whether  to  admit  or  exclude  it,  legal  authority  is  given  him  to  do 
that  which  is  now  done  without  it;  and  in  that  case  alone  the  rule,  on 
which  some  animadversions  have  been  made,  is  sanctioned,  and  the 
judge  is  directed  to  suppose  himself  in  the  place  of  the  legislator,  and 
to  ask  what  would  probably  be  his  opinion  if  the  case  had  been  presented 
to  him,  and  to  decide  accordingly;  but  to  make  report  of  the  case  to 
the  legislature  in  the  manner  required  by  the  preceding  article,  who 
will  in  like  manner,   give  or  refuse  their  sanction   to   the  principle 
adopted  by  the  court,  and  insert  the  affirmative  or  negative  provision 
in  the  code.     Whatever  the  legislature  do  in  this  last  case,  will  not  af- 
fect the  decision  if  in  a  civil  suit;  the  ends  of  justice  require  that  the 
delay,  uncertainty  and  intrigue,  incident  to  the  revision  by  the  legisla- 
ture of  an  adjudged  case  should  be  avoided.     The  court  decides  the  case 
before  them,  but  makes  no  rule  for  future  cases;  that  is  left  to  the  legis- 
lature, whose  proper  province  it  is.    But  if  the  decision  takes  place  in  a 
criminal  cause,  and  in  consequence  of  the  admission  or  rejection  of 
evidence,  not  directed  by  any  law,  the  accused  shall  be  convicted,  it  is 
clear  that  his  conviction  will  have  taken  place  under  an  ex  post  facto 
rule,  and  is,  therefore,  illegal.     The  article  consequently  provides,  that, 
in  such  case,  judgment  shall  be  arrested  and  the  defendant  discharged. 
These  provisions  are  deemed  to  be  of  the  highest  importance.  They 
are  new,  and  the  attention  of  the  general  assembly  is  respectfully  called 


THE  CODE  OF  EVIDENCE.  251 

to  a  close  consideration  of  them.  They  offer,  it  is  confidently  believed,  a 
complete  answer  to  the  objection  that  has  been  raised  to  a  written  code, 
from  its  rigidity,  or  what  has  been,  by  a  celebrated  jurisconsult,  called 
its  want  of  malleability.  It  cannot,  indeed,  be  worked  into  any  kind 
of  shape  that  the  discretion  of  a  judge,  well  or  ill  directed,  may  deem 
necessary:  but,  by  this  means,  it  may  be  accommodated  to  the  changes 
which  take  place  in  society,  and  adapted  to  its  wants  as  they  arise,  and 
this  more  effectually,  more  constitutionally,  and  equitably,  than  by  the 
legislation  of  decrees;  more  effectually,  because  the  sanction  of  positive 
law  will  not  only  give  it  a  legitimate,  instead  of  a  doubtful  authority, 
but  because,  being  promulgated  as  a  law,  it  will  be  universally  known; 
being  concise,  it  will  be  easily  understood,  and  a  knowledge  of  its  pro- 
visions may  be  acquired  without  expense;  more  constitutionally,  because 
it  will  emanate  from  the  proper  department  of  government;  and  its 
superior  equity  must  be  apparent,  when  we  consider  that,  in  the  one  case, 
the  rule  is  made  and  applied  to  an  existing  case,  in  the  other,  it  has  no 
force  until  after  its  enactment  and  promulgation.  This  most  valuable 
and  simple  improvement  in  legislation  was  recommended  in  a  former 
report;  and  the  greatest  confidence  is  felt  in  its  efficiency,  because, 
among  the  number  of  lawyers  and  statesmen  to  whom  it  has  been  pro- 
posed, not  one  was  to  be  found  who  raised  any  other  objection,  than 
that  it  was  a  novelty — a  characteristic  necessarily  attached  to  every  im- 
provement; while,  to  a  very  large  majority  of  them,  it  appeared  to 
promise  the  most  important  results. 

The  profound  feeling  which  the  reporter  has,  that  the  code  he  pro- 
poses must  contain  many  errors,  and  that  material  omissions  may  be 
discovered  when  it  goes  into  operation,  induces  him  to  urge  the  adop- 
tion of  these  two  articles  with  the  greater  earnestness.  The  facility 
they  offer  of  discovering  these  errors  and  imperfections  and  bringing 
them  to  the  consideration  of  the  legislature,  and  the  ease  with  which 
they  can  be  effectually  amended,  cannot  but  lessen  the  reluctance  he 
would  have  to  propose  any  thing  of  which  the  correction  would  be  at- 
tended with  greater  difficulty.  He  may  be  allowed,  perhaps,  to  suggest 
another  argument  for  their  adoption,  founded  on  a  feeling  different  from, 
but  not  inconsistent  with,  that  which  he  has  just  expressed.  Conscious 
that  there  must  be  many  imperfections  in  the  work,  he  yet  feels  a  con- 
fidence that  it  is  founded  on  true  principles,  and  that,  from  the  manner 
in  which  they  are  reduced  to  precept,  the  general  effect  cannot  but  be 
eminently  useful,  with  the  safeguard  of  these  provisions  for  the  gradual 
perfection  of  the  system.  Therefore,  the  general  assembly  incur  no 
risk  in  their  adoption.  Parts,  of  which  the  utility  does  not  seem  per- 
fectly apparent,  may  therefore  safely  be  retained,  until  their  operation 
is  seen:  that  operation  cannot  be  materially  injurious,  even  if  these  parts 
are  bad.  The  evil  is  instantly  perceived,  and  a  check  is  provided  for 
their  operation  on  the  first  case  in  which  they  are  discovered. 

After  these  introductory  articles,  we  come  to  the  body  of  the  work. 

Evidence  is  defined  to  be  that  which  brings,  or  contributes  to  bring, 
the  mind  to  a  just  conviction  of  the  truth  or  falsehood  of  the  fact  asserted 
or  denied.  Because,  in  weak  minds,  conviction  may  be  produced,  by 
that  which,  addressed  to  an  understanding  of  common  force,  would 
create  doubt  or  conjecture  merely;  it  became  necessary  to  qualify  by 
the  epithet  just,  the  nature  of  the  conviction  to  be  produced.  So  far 
as  respects  mere  speculative  opinion,  there  can  be  no  danger  in  leaving 


252  INTRODUCTORY  REPORT  TO 

the  determination  of  what  may  he  termed  just  to  each  individual's  per- 
ception of  right  and  wrong;  but  as  applied  to  the  determination  of 
litigated  rights,  another  qualification  was  necessarily  introduced,  and 
under  the  denomination  LEGAL  EVIDENCE,  that  alone,  which  is  declared 
by  law  to  be  good  evidence,  forms  the  subject  of  the  code. 

If  evidence  may,  according  to  the  definition,  produce,  or  contribute 
only  to  produce,  conviction,  it  must  in  relation  to  its  effects  have  dif- 
ferent degrees  of  force.  These  degrees,  producing  as  many  different 
kinds  of  evidence,  are,  under  this  head,  restricted  to  three,  ascend- 
ing from  that  created  by  mere  induction,  to  that  which  is,  by  law, 
directed  to  have  the  force  of  complete  proof ;  PRESUMPTIVE,  which, 
by  establishing  one  fact,  renders  the  existence  of  another  proba- 
ble, or,  in  some  cases,  certain  ;  DIRECT,  which,  if  true,  establishes 
the  fact  in  question  ;  and  CONCLUSIVE,  which,  in  special  cases,  is  de- 
clared to  admit  of  no  contradictory  evidence. 

Considered  in  relation  to  the  source  from  whence  it  is  derived,  evi- 
dence is  again  of  two  kinds  :  first,  that  which  the  judge  derives  from  his 
own  knowledge: — secondly,  that  which  is  offered  to  him  from  other 
sources,  and  this  last  is  again  composed  of  TESTIMONIAL,  SCRIPTORY, 
and  SUBSTANTIVE  evidence. 

After  these  divisions,  necessary  for  the  order  of  the  work,  it  pro- 
ceeds with  a  more  full  explanation  of  the  different  kinds  into  which  it 
is  distributed,  and  an  enumeration  of  the  rules  applicable  to  each. 

Beginning  with  the  division  arising  from  the  source  whence  the 
evidence  is  derived,  a  short  title  declares  in  what  cases  the  judge 
may  act  from  his  own  knowledge  of  the  fact  on  which  he  is  to  decide, 
and  in  what  other  cases  that  knowledge  is  to  be  produced  as  evidence 
in  the  cause.  In  the  first  case  it  is  provided,  that  no  judge  can  act 
merely  on  his  own  knowledge  of  the  facts,  excepting  in  those  cases  in 
which  he  is  expressly  authorized  so  to  do  by  law.  Those  cases  it 
is  the  province  of  the  Civil  and  Criminal  Codes,  and  their  respective 
systems  of  procedure,  to  provide  for.  Instances,  to  elucidate  the  arti- 
cle, are  given  in  the  powers  vested  in  the  judge  to  pronounce  on  the 
authenticity  of  a  record,  in  the  right  given  him  to  commit  for  an  offence, 
to  remove  for  a  disturbance  in  court,  and  to  employ  the  military  in 
aid  of  the  civil  power.  But  where  the  judge  has  knowledge  of  a  ma- 
terial fact,  in  any  case  not  so  specially  provided  for,  he  is  to  be  exam- 
ined in  the  same  manner  as  any  other  witness  ;  and  if  he  is  the  sole 
judge  of  the  court,  the  judge  of  the  adjoining  district  is  to  try  the 
cause,  in  the  manner  provided  for  where  the  judge  is  interested.  Ju- 
rors who  are  acquainted  with  any  material  fact  must,  in  all  cases,  be 
examined  to  give  evidence  to  their  fellows.  In  this  title,  the  law  is 
not  materially  altered.  It  is  rendered  more  definite,  and  the  sanction 
of  written  law  is  given  to  that  which  is  now,  in  some  degree,  founded 
in  loose  practice. 

The  next  division  of  evidence,  derived  from  extraneous  sources,  is 
in  itself  more  important,  and,  in  this  code,  is  especially  so,  because 
of  the  changes^  which  it  proposes  in  our  present  system.  The  first 
head,  that  of  Testimonial  Evidence,  is  the  one  in  which  these  changes 
are  of  most  consequence,  and,  in  the  opinion  of  the  reporter,  most  re- 
quired. They,  however,  repose  on  very  simple  principles,  or,  to 
speak  more  precisely,  on  a  single  principle,  and  that  one  drawn  from 
the  very  definition  of  evidence. 


THE  CODE  OF  EVIDENCE.  253 

The  organization  of  courts,  the  enumeration  of  rights,  the  means  of 
asserting,  with  the  denunciation  of  penalties  for  infringing  them,  and 
the  rules  of  procedure,  are  only  preparatory  steps  to  the  trial  which, 
in  itself,  is  but  the  examination  of  evidence.  Ultimate^,  then,  the 
whole  machinery  of  jurisprudence,  in  all  its  branches,  is  contrived  for 
the  purpose  of  enabling  the  judging  power  to  determine  on  the  truth 
or  falsehood  of  every  litigated  proposition.  This  to  be  done  by  hear- 
ing and  examining  evidence  ;  that  is  to  say,  hearing  and  examining 
every  thing  that  will  contribute  to  bring  the  mind  to  the  determination 
required.  If  we  refuse  to  hear  what  will,  in  any  degree,  produce  this 
effect,  we  must  determine  on  imperfect  evidence  ;  and  in  proportion, 
to  the  importance  of  the  matter  thus  refused  to  be  heard,  must  evident- 
ly be  the  chance  of  making  an  incorrect  rather  than  a  just  determination. 
But,  as  in  morals,  we  are  forbidden  to  do  evil  that  good  may  come  of 
it,  so  in  legislation,  we  should  refrain  from  doing  that  kind  of  good 
which  may  produce  more  than  its  equivalent  in  evil.  The  desirable 
end  to  be  attained  by  the  admission  of  every  species  of  evidence,  may 
be  more  than  counterbalanced,  in  some  instances,  by  the  evil  attend- 
ing it ;  sometimes,  in  the  shape  of  inconvenience  and  expense  insepa- 
rable from  its  procurement;  sometimes,  from  the  danger  of  error  arising 
from  the  the  deceptive  nature  of  the  evidence  itself.  The  great  art  is 
to  weigh  these  difficulties,  and  in  those  cases  where  they  are  most 
likely  to  preponderate,  but  in  no  others,  to  exclude  the  evidence. 

Before  we  enter  into  an  examination  of  the  provisions  of  the  code 
now  presented,  it  will  be  necessary  to  examine  those  of  our  present 
law.  On  the  subject  of  evidence  we  have  several  different  bodies  of 
law  to  consult :  one  for  civil  cases,  a  second  for  a  class  of  offences 
created  under  a  particular  statute,  and  a  third  for  all  other  offences. 
For  the  first,  we  must  consult  the  civil  code  ;  for  the  second,  the 
common  law  of  England  ;  for  the  third,  the  laws  of  Spain(#).  On 
the  subject  of  exclusion,  that  now  under  consideration,  all  these  sys- 
tems materially  differ,  and  all  of  them  are  more  or  less  uncertain  in 
their  provisions.  By  the  civil  code,  the  exclusions  are,  interest,  rela- 
tionship in  the  ascending  or  descending  line,  connexion  in  marriage, 
and  the  very  vague  description  of  "  those  whom  the  law  deems  infa- 
mous/' It  also  forbids  the  examination  of  a  counsellor  or  attorney  in 
order  to  obtain  a  discovery  of  what  has  been  confided  to  him  by  his 
client ;  but  somewhat  strangely,  considering  that  the  Catholic  is  the 
prevalent  religion  in  the  country,  omits  to  provide  for  the  inviolability 
of  religious  confession.  These  are  the  only  general  rules,  relating  to 
testimonial  evidence  in  civil  cases,  that  are  provided  by  statute.  For 
the  exclusions  in  those  criminal  cases  which  are  punishable  under  the 
statute  of  1805,  we  must  refer  to  the  common  law  of  England.  To 
enumerate  them,  and  note  the  exceptions  with  accuracy,  would  be  a 
difficult,  and  as  far  as  the  ability  and  research  of  the  reporter  is  con- 
cerned, an  impracticable  task  ;  and  without  any  endeavour  to  avoid  the 
reproach  of  ignorance  or  want  of  diligence  on  the  subject,  he  may  venture 
to  assert,  that  it  has  never  yet  been  satisfactorily  performed,  as  is  manifest 
from  the  numerous  treatises  on  the  law  of  evidence  which  have  appeared, 
become  obsolete,  and  are  replaced  by  others,  themselves  to  become  an- 
tiquated and  laid  aside  whenever  the  changing  system  of  decisions 

(a)  See  Introductory  Reports,  p.  60,  et  seq.  and  p.  157,  in  the  note,  and  DC  Armas's  case, 
10  Martin's  Report?. 


254  INTRODUCTORY  REPORT  TO 

establishes  new  rules  or  creates  exceptions  to  those  which  were  in  like 
manner  previously  established.  Fortunately,  nothing  on  this  occasion 
is  required  more  than  a  general  outline,  upon  which  to  mark  the  chan- 
ges that  are  recommended  by  the  system  now  presented. 

The  circumstances  which  are  generally  understood  to  cause  exclusion 
by  the  common  law  of  England  are,  interest,  connexion  in  marriage, 
infamy,  incredulity  as  to  a  future  state  of  rewards  and  punishments,  the 
relation  of  counsellor  or  attorney  to  one  of  the  parties,  and  conviction 
for  an  infamous  crime.  To  the  laws  of  Spain,  as  has  been  said,  and, 
as  is  thought,  satisfactorily  proved  in  the  Introductory  Report  to  the 
System  of  Penal  Law(a),  we  must  have  recourse,  in  civil  cases, 
to  discover  what  is  meant  by  the  description  in  the  code  of  "those 
whom  the  law  deems  infamous ;  ancKn  criminal  cases,  to  direct  us  in 
prosecutions  for  all  those  acts  which  may  be  considered  offences  under 
the  unrepealed  Spanish  law,  and  all  those  which  are  created  offences  by 
acts  subsequent  to  the  year  1805.  The  list  of  exclusions  under  these 
last  mentioned  laws,  is  filled  to  a  most  enormous  length  with  every  cir- 
cumstance that  can  create  the  slightest  suspicion  of  partiality,  prejudice, 
or  a  disposition  to  falsehood.  The  principle  of  these  laws  seems  to  be, 
that  the  weakest  inducement  to  utter  falsehood  is  stronger  than  the  great- 
est inducement  to  tell  the  truth;  that  all  those  who  are  counted  infamous 
ought  never  to  be  believed;  and  that  a  usurer,  a  comedian,  a  slanderer, 
and  all  the  others,  who,  by  a  most  extraordinary  classification,  are  involv- 
ed in  the  stigma  of  infamy,  as  well  as  those  convicted  of  crimes,  ought 
on  no  occasion,  not  even  for  saving  the  life  of  the  innocent,  or  the  more 
favourite  object  of  taking  that  of  the  guilty,  to  be  heard.  The  intimate 
friend,  the  frequent  guest,  the  near  relation,  all  of  whom  were  most 
likely  to  be  acquainted  with  the  circumstances  and  character  of  the  parties, 
or  accused,  as  well  as  the  avowed  enemy,  were,  or  rather,  as  this  is  now 
our  law,  are,  legally,  in  the  cases  above  mentioned,  excluded. 

Without  troubling  the  general  assembly  with  a  repetition  of  the  argu- 
ments to  prove  this  assertion,  I  again  refer  to  that  Introductory  Report, 
only  observing  here,  that  it  is  no  answer  to  say,  that  those  laws  do  not 
exist,  because  the  judges  have  not  yet  thought  proper  to  act  upon  them. 
The  question  is  not,  what  has,  but  what  can  be  done:  not  what  good 
judges  have  refrained  from  doing,  from  their  own  sense  of  right,  not 
from  the  restriction  of  law — but  what  bad  men  might  do  in  evil  times, 
under  the  sanction  of  bad  laws;  or  good  men,  under  the  impression 
that  they  are  bound  to  execute  them. 

Omitting  the  unnecessary  task  of  examining,  in  detail,  the  list  of  ex- 
clusions under  the  Spanish  law,  and  showing  their  absurdity  and  injus- 
tice, I  proceed,  at  once,  to  the  examination  of  those  which  are  acknow- 
ledged and  enforced  as  part  of  the  law  of  the  state. 

The  first  of  these  disqualifying  circumstances,  declared  by  the  code 
to  prevail  in  civil  cases,  and  making  a  prominent  feature  in  the  common 
law  adopted  in  criminal  cases  by  our  statute,  is  interest,  which  is  con- 
strued to  mean  an  eventual  gain  or  loss  that  may  be  estimated  in  money, 
by  the  decision  of  a  cause  in  which  the  testimony  is  produced.  By  the 
code  now  offered,  interest  shall  no  longer  disqualify,  but  may  be  proved 
in  order  to  lessen,  in  proportion  to  its  magnitude  and  to  the  other  cir- 
cumstances of  the  case,  the  credit  that  may  be  given  to  the  witness. 

(a)  Pages  63,  64,  et  seq.,  and  p.  157,  in  the  note. 


THE  CODE  OF  EVIDENCE.  255 

This  important  change  demands  a  full  explanation  of  the  reasons  for 
proposing  it.  For  this  purpose  it  will  be  necessary  to  revert  once  more 
to  the  nature  and  effect  of  all  exclusions  of  testimony.  These  have  been 
shown  to  be  injurious  to  the  great  object  of  judicial  investigation,  the 
discovery  of  the  truth.  Prima  facie  then  there  ought  to  be  no  exclu- 
sion; but,  as  has  been  observed,  there  may  be  evils  attending  the  ad- 
mission of  certain  evidence,  which  may  be  greater  than  any  good  such 
evidence  could  produce  in  elucidating  the  truth.  To  exclude  any  species 
of  evidence,  therefore,  it  must  be  shown  that  such  attendant  evil  pre- 
dominates. This  evil  can  only  be  inconvenience  and  expense  in  pro- 
curing the  testimony  greater  than  the  advantage  to  be  derived  from  its 
admission;  or  the  probability  that,  if  admitted,  it  will  tend  rather  to 
mislead  than  to  enlighten  the  judge.  These  probabilities  must  be 
weighed  whenever  we  come  to  consider  the  propriety  or  rather  the 
necessity,  for  that  ought  to  be  evident,  of  creating  a  rule  excluding  tes- 
timony of  any  one  description. 

Now  let  us  apply  these  rules  to  that  which  declares  an  interested 
witness  inadmissible.     This  can  only  be  found  on  the  following  suppo- 
sitions: first,  that  pecuniary  interest  will  be  sufficient  to  induce  the  wit- 
ness to  incur  the  inevitable  embarrassment  and  difficulty  of  sustaining 
an  untruth  under  the  searching  trial  of  a  rigorous  cross-examination; 
attended  by  the  liability,  too,  of  being  detected,  and  of  the  consequent 
punishment  and  infamy  attending  a  conviction  for  perjury,  in  order  to 
have  the  chance  of  the  advantage  he  may  promise  himself  from  a  judg- 
ment to  be  obtained  by  his  falsehood;  for  let  it  be  observed,  that,  if  on 
the  one  hand,  there  is  no  certainty  of  punishment,  conviction  or  infamy, 
there  is,  on  the  other,  no   certainty  of  securing  the  advantage  that 
prompts  him  to  encounter  the  risk.   Secondly,  it  must  be  supposed  that 
the  falsehood,  thus  asserted,  will  be  believed  by  the  judges  of  the  fact. 
If  not  believed,  the  testimony  cannot  mislead;  and  we  may  lay  down  as 
a  rule  which  admits  of  very  few  exceptions,  that  with  the  aids  of  cross- 
examination,  publicity,  and  the  right  of  producing  counter  testimony, 
the  chances  are  greatly  in  favour  of  truth  against  deception.     On  this 
head,  too,  we  must  not  forget  that  the  judge  is  on  his  guard  against  giv- 
ing too  implicit  faith  to  the  witness,  because  he  is  aware  of  the  bias 
which  interest  would  naturally  create.     The  argument  supposes  the  in- 
terest to  be  known,  for,  if  not  known,  it  cannot  exclude.     Knowing  the 
interest,  he  will  not  only  be  more  inclined,  but  better  enabled,  to  test 
the  truth  of  the  testimony  by  a  rigorous   investigation;  and  what  is  of 
more  importance,  he  will  be  enabled  to  judge  from  the  nature  and  amount 
of  the  interest,  contrasted  wilh  the  character  of  the  witness,  and  other 
circumstances,  what  effect  it  will  probably  have  on  the   testimony. 
These  considerations  must,  therefore,  tend  to  show,  that  even  in  the 
cases,  and  it  is  not  denied  that  they  may  exist,   where  interest  may  in- 
duce a  departure  from  the  truth,  the  fear  of  its  misleading  the  judge  is 
greatly  exaggerated  by  those  who  make  it  a  ground  for  utter  exclusion. 
The  two  assumptions,  then,  necessary  to  support  the  argument,  to  wit, 
that  interest  will  always,  or  even  generally,  induce  the  witness  to  en- 
counter the  difficulties  and  dangers  of  asserting  a  falsehood,  and  that  if  it 
should  have  this  operation,  the  falsehood  will  most  probably  be  believed, 
have  both  been  shown  to  be  groundless;  and  even  on  this  preliminary  state- 
ment, the  disadvantages  of  shutting  out  the  testimony  of  an  interested 
witness  must  be  apparent:  but  many  other  considerations  must  be  brought 


250  INTRODUCTORY  REPORT  TO 

into  the  account  before  we  strike  the  balance  of  good  or  evil  attending 
its  admission.  A  most  profound  writer  on  this  subject(«)  has  argued, 
and  \vith  great  force,  that  so  far  from  leading  to  deception,  the  testimony 
of  an  interested  witness  will,  in  many  cases,  bring  out  the  truth  by  the 
very  attempts  which  he  makes  to  conceal  it.  No  more  falsehood,  he 
contends,  will  be  uttered  than  the  witness  thinks  necessary  to  obtain 
the  object  he  has  in  view:  from  these  partial  disclosures  of  truth,  infor- 
mation of  importance  may  be  derived  to  corroborate  or  contradict  other 
evidence  ;  not  so  much  will  be  uttered  as  is  necessary,  if  it  be  highly 
improbable,  or  may,  from  other  circumstances,  create  great  risk  of  de- 
tection. Truth  must  supply  all  these  intervals,  and  truth,  from  the  lips 
of  an  interested  witness,  is  as  valuable  as  if  it  were  derived  from  a  purer 
source;  but  if  he  dare  not  tell  the  falsehood,  because  it  is  too  dangerous 
or  too  easy  of  detection,  and  will  not  tell  the  truth,  because  it  defeats 
his  interest,  he  must  have  recourse  to  silence  or  evasion;  and  either  of 
these  expedients  are  as  sure  indications  of  falsehood,  in  most  instances,  as 
a  confession  of  it  would  be.  Therefore,  whether  the  interested  witness 
declare  the  truth  or  utter  a  falsehood,  or  recur  to  evasion  or  silence, 
his  evidence  will  more  probably  lead  to  a  just  than  an  erroneous  decision. 
False  testimony  is  more  difficult  to  frame,  and  is  more  easily  detected, 
than  those  not  conversant  with  judicial  proceedings  might  imagine.  If 
the  witness  were  at  liberty,  in  secret  and  at  his  leisure,  to  frame  his 
own  story,  and  state  only  such  circumstances  as  his  imagination  might 
supply  in  a  detailed  account  of  all  that  he  thought  necessary,  without 
the  fear  of  confrontation,  cross-examination,  and  publicity,  he  would 
have  nothing  but  his  invention  to  task,  and  might,  from  his  own  stores, 
or  the  suggestion  of  parties,  frame  a  consistent  tale  that  might  impose 
on  the  judge.  But,  fortunately,  this  is  not  the  case;  he  knows,  that  the 
strictest  scrutiny  awaits  every  allegation  that  he  shall  make;  that  his 
words,  and  even  his  silence,  will  be  the  subject  of  the  severest  animad- 
version; that  his  very  looks  will  not  escape  the  attention  of  the  practised 
cross-questioner  ;  and  that,  during  his  examination,  the  gaze  of  a 
hundred  eyes  will  be  upon  him,  and  he  cannot  but  fear  that  some  one 
will  start  forth  from  the  crowd  to  detect  his  falsehood.  All  this  he  must 
anticipate;  and  under  these  apprehensions  it  will  require  more  ready  in- 
vention, more  self-possession,  and  more  courage  than  falls  to  the  share 
of  ordinary  men  to  persevere  in  a  feigned  statement,  and  render  it  so 
consistent  as  to  give  it  the  semblance  of  truth;  so  that,  if  these  well- 
founded  fears  do  not  deter  him  from  his  purpose,  they  will  at  least,  for 
the  most  part,  render  him  incapable  of  carrying  it  successfully  into 
effect.  The  part  of  a  false  witness  is  more  difficult  to  act  than  is  generally 
supposed;  and  though  many  rashly  and  wickedly  engage  in  it  from  a  false 
confidence  in  their  ability,  yet  very  few  can  sustain  it  to  the  end,  and 
through  the  great  ordeals  of  cross-examination  and  publicity. 

All  this  is  on  the  supposition  that  pecuniary  interest  will  always  in- 
duce a  witness  to  depart  from  the  truth;  but  when  from  the  whole  num- 
ber which  compose  this  class,  we  deduct  those  to  whom  the  interest  is 
too  trifling  to  be  an  object  compared  to  their  fortune  and  situation  in 
life — those  who,  even  under  the  influence  of  a  strong  interest,  would 
be  restrained  by  the  stronger  motives  of  religion  or  morality — those 
who  would  be  deterred  by  the  fear  of  shame  or  of  punishment — 

(a)  Bentham,  Rationale  of  Judicial  Evidence. 


THE  CODE  OP  EVIDENCE.  357 

who,  without  either  of  these  restraints,  find  their  hearts  to  fail  them  from 
the  difficulty  of  performing  their  tasks:  when  we  deduct  all  these  from  the 
mass  of  interested  witnesses,  we  shall  have  very  few  left  willing  to  sustain 
the  character  of  perjured  ones;  and  of  those  few,  not  many  who  can  do 
it  with  any  prospect  of  success.  But  under  the  general  words  of  the 
rule,  all  these  are  excluded — all  kinds  of  pecuniary  interest  disqualifies. 
He  who  is  worth  millions  of  dollars,  cannot  be  a  witness  if  he  is  to  gain 
or  lose  a  single  dollar  of  those  millions,  by  the  event  of  the  cause:  the 
man  of  the  highest  sense  of  honour,  or  the  most  venerated  for  his  holy 
life,  is  equally  excluded,  if  the  eventual  gain  or  loss  is  equivalent  only 
to  the  hundredth  part  of  those  sums  which  he  daily  distributes  in  charity; 
and  even  in  cases  where  detection  is  highly  probable,  the  most  timid  is, 
by  the  rule,  supposed  ready  to  encounter  the  risk  of  punishment — and 
the  most  honourable,  to  take  his  chance  of  infamy,  for  the  uncertain 
hope  of  an  insignificant  gain.  Detection  is  presumed  to  be  impossible,  and 
the  credulity  of  judges  and  jurors  to  be  so  great,  that  a  false  tale  must, 
if  it  be  allowed  to  reach  their  ears,  produce  instant  conviction  that  it  is 
true.  They  forget,  who  insist  on  this  rule,  how  difficult  it  is  even  for 
truth  to  produce  its  proper  effect,  although  attended  with  all  the  advan- 
tages it  naturally  brings  with  it ;  and  they  argue  as  if  falsehood  alone 
could  charm  the  understanding  and  lay  suspicion  asleep. 

The  question  then  is  this,  whether  on  account  of  the  danger  of  being 
deceived  by  the  few  who  are  willing  to  assume  the  character  of  perjured 
witnesses,  a  danger  diminished  by  the  many  powerful  means  we  have 
of  detecting  their  falsehood,  it  would  be  wise  to  deprive  ourselves  of 
the  testimony  of  all  those  infinitely  more  numerous  classes  of  interested 
witnesses,  from  whom  we  may,  expect  nothing  but  truth  ?  For  this  is 
the  only  alternative.  The  law  can  draw  no  line  between  interests  of 
different  amounts,  or  between  interested  witnesses  of  different  charac- 
ters— it  must  admit  or  exclude  the  whole.  Which  shall  it  do  ?  One 
consideration,  if  there  were  no  other,  would  seem  to  resolve  the  ques- 
tion. Exclusion  is,  in  many  cases,  a  certain  evil — admission  only  a 
problematical  one.  Where  the  incompetent  witness,  whether  from  in- 
terest or  any  other  cause,  is  the  only  witness,  certain  injustice  results 
from  a  refusal  to  hear  him.  Listen  to  him,  and,  first,  it  is  not  certain 
that  his  interest  or  any  other  cause  will  induce  him  to  depart  from  the 
truth;  and,  secondly,  if  he  do,  it  is  not  certain  that  you  will  believe 
him.  If  he  is  not  the  only  witness,  the  other  testimony  will  furnish 
additional  means  of  detecting  any  false  statement  that  may  have  been 
prompted  by  his  interest. 

I  have  said,  that  the  law  cannot  distinguish  particular  cases,  but  must 
enact  a  general  rule.  This  is  obvious;  and  it  is  equally  so,  that  the 
judges  of  the  fact  can.  Let  them  hear  the  witness.  From  all  the  cir- 
cumstances which  they  can  collect,  and  which  the  legislator  cannot,  they 
can  tell,  with  tolerable  certainty,  in  which  class  of  interested  witnesses 
he  comes — those  who  may  be  believed,  or  those  who  may  not.  This 
they  cannot  do  without  hearing  him;  and  when  they  have  done  so,  and 
have  even  assigned  him  to  the  latter  class,  they  do  more  than  destroy 
the  ill  effect  of  his  testimony,  because  they  draw  from  it  all  the  infor- 
mation which,  as  we  have  seen,  may  be  derived  even  from  false  evidence, 
and  run  no  risk  of  crediting  that  which  they  discover  to  be  inconsistent 
with  truth.  They  can  do,  then,  effectually,  that  which  the  legislative 
rule  does  imperfectly — they  can  let  in  the  interested  testimony  which 
2  H 


258  INTRODUCTORY  REPORT  TO 

is  worthy  of  credit,  and  exclude  that  which  is  not.  Why  does  this  rule 
exclude  all  interested  testimony  ?  Because  a  part  only  is  unworthy  of 
credit.  Would  wise  legislators  be  guilty  of  this  absurdity,  and  worse 
than  absurdity,  in  many  cases  this  injustice  and  cruelty,  if  it  were  poss- 
ible for  them  to  make  the  necessary  distinction  ?  Certainly  they 
would  not.  Why  not  then  commit  this  task  to  those  who  can  ? 
Why  not  say  to  those  to  whom  they  delegate  the  decision  of  facts, 
"pecuniary  interest  has,  in  some  cases,  a  seductive  influence,  injurious 
to  the  discovery  of  truth;  in  many  others,  it  will  not  be  felt.  We 
can  draw  no  line  of  demarcation  between  the  cases.  We  cannot 
make  the  exclusion  depend  on  the  magnitude  of  the  interest,  because 
that  is  relative.  Fix  the  minimum  where  we  may,  there  are  men 
on  whom  the  smallest  sum,  would  have  an  improper  influence;  and 
others  on  whom  the  largest  would  have  none.  Wherever  we  draw  the 
line,  we  shall  admit  suspicious  evidence  and  exclude  that  which  is  un- 
exceptionable. To  be  just,  a  separate  rule  must  be  made  for  every  wit- 
ness, because  upon  no  two  will  the  same  amount  of  interest  have  the  same 
effect.  It  is  your  privilege  to  determine  what  degree  of  credit  the  wit- 
ness, under  all  the  circumstances,  favourable  or  unfavourable,  in  which 
he  is  presented  to  you,  is  entitled  to,  because  it  is  your  duty  to  deter- 
mine according  to  your  conviction  of  the  truth.  In  prescribing  the 
duty,  we  will  not  restrain  you  from  using  the  means  necessary  to  per- 
form it.  You  who  see  the  looks  and  observe  the  demeanour  of  the 
witness,  as  well  as  hear  what  he  says;  you  who  can  inquire  into  his  cir- 
cumstances and  character;  you  who  can  judge  how  far  his  testimony  is 
corroborated  or  contradicted  by  other  evidence;  you  will  be  better 
qualified  to  determine  whether  the  interest  be  so  great  as  to  render  him 
unworthy  of  belief,  than  we  are,  who  have  none  of  these  means  of  form- 
ing a  correct  judgment."  This  would  be  the  language  of  reason.  In- 
stead of  it,  what  is,  in  effect,  that  which  is  addressed  to  them  ?  "  It  is 
true  that  you  are  delegated  to  decide  litigated  questions  of  fact.  The 
greatest  confidence  must  necessarily  be  reposed  as  well  in  your  integrity 
as  your  judgment,  in  the  general  performance  of  this  duty;  but  there 
is  one  point  on  which  we  dare  not  trust  your  discernment.  We  will 
not  permit  you  to  hear  what  an  interested  witness  will  say.  We  are 
sure,  that  under  all  .circumstances  that  may  counteract  the  bias  of  his  in- 
terest, and  however  small  that  interest  may  be,  we  are  sure  that  it  will 
induce  him  to  utter  a  falsehood;  and  we  are  sure  that,  in  spite  of  all  the 
means  we  give  you  to  detect  it,  we  are  sure,  that  however  improbable 
it  may  be,  you  will  believe  it.  Therefore,  whenever  a  witness  is  pre- 
sented to  you,  ask  him  first,  whether  he  will  gain  or  lose  a  cent  by  the 
decision  of  the  cause;  if  he  answer  truly,  that  he  will — be  sure  that 
he  will  answer  falsely  on  every  other  point  on  which  you  may  examine 
him.  It  is  useless  to  inquire,  what  proportion  the  interest  bears  to  his 
income;  it  is  useless  to  ask,  what  is  his  character  for  veracity  or  re- 
ligion. The  highest  standing  in  society,  the  best  reputation,  the  largest 
fortune,  are  nothing  compared  to  this  all-prevailing  interest  of  a  dollar, 
or  a  cent.  Do  not  give  yourselves  the  trouble  to  inquire,  whether  the 
circumstances  do  not  show  a  case  in  which  falsehood  would  meet  with 
certain  detection.  The  fear  of  punishment— the  fear  of  shame— the  re- 
straints of  religion — all  give  way  before  this  irresistible  interest  of  a 
dollar,  or  a  cent.  No  matter  if  the  fortune,  the  reputation,  or  the  life 
of  a  citizen  depend  on  the  question;  it  is  better  they  should  all  be  lost, 
than  that  you  should  listen  to  an  interested  witness.  You  may  hear  the 


THE  CODE  OF  EVIDENCE.  259 

sworn  enemy  of  the  party.  You  may  hear  his  brother,  or  his  most 
intimate  friend.  We  can  trust  you  with  the  difficult  task  of  determin- 
ing what  effect  all  the  passions  of  the  mind  can  have  in  giving  a  colour 
of  truth  or  falsehood  to  testimony.  But  interest,  all-powerful  interest, 
has  no  shades  of  difference — a  cent  will  influence  the  richest  banker  in 
the  same  degree  that  a  dollar  will  a  beggar.  Wherever  this  appears, 
you  must  exclude  it — without  pity  for  the  ruin  it  occasions — with- 
out remorse  for  the  death  it  inflicts!"  This  is  the  true  meaning  of 
the  short  precept  of  the  English  law,  and  the  equivalent  provision  of  our 
civil  code.  There  is  not  a  word  of  exaggeration  in  the  comment  I  have 
given;  and  after  considering  the  subject  in  all  its  bearings,  who  can 
hesitate  on  the  question,  whether  interest  ought  not  rather  to  be  con- 
sidered an  objection  to  the  credit  than  to  the  competency  of  a  witness  ? 
In  the  first  case,  you  can  appreciate  the  bias  at  nearly  its  true  value, 
according  to  the  circumstances  on  which  it  has  to  operate;  in  the  last, 
the  strongest  and  the  weakest  motives  are  considered  as  having  equal 
force. 

The  truth  of  this  reasoning  is  evident  from  the  efforts  which,  of  late 
years,  the  courts  have  been  making  to  get  rid  of  the  shackles  with  which 
they  have  been  bound  by  their  own  decisions  ;  unable  or  unwilling  to 
declare  the  rule  unwise  and  unjust,  they  have  relaxed  it  in  some  cases, 
but  retained  it  in  others,  which,  for  the  same  reason,  ought  to  have 
formed  an  exception,  and  by  hearing  interested  witnesses  in  some  cases, 
and  rejecting  them  in  others,  they  have  not  only  abandoned  the  pro- 
priety of  the  rule,  but  have  established  no  uniform  principle  on  which 
another  can  be  founded.  Exceptions,  the  maxim  asserts,  prove  the 
rule.  They  may  prove  the  existence  of  a  rule,  but  never  that  it  is  a 
proper  one,  unless  there  is  some  reason  applying  to  the  case  excepted, 
which  does  not  apply  to  the  rule.  Where  the  reason  for  taking  a  case  out 
of  the  operation  of  a  general  rule  is  a  good  one,  and  applies  with  equal 
force  to  all  that  are  left  within  it,  there  can  be  no  better  proof  that  the 
rule  itself  is  bad.  Let  us  examine  the  exceptions  in  this  view;  pre- 
mising, however,  that  in  civil  cases  there  can,  in  our  state,  legally  be  no 
exception.  The  legislative  will  is  clearly  and  imperatively  expressed: 
those  who  are  interested — no  matter  in  what  degree,  no  matter  whom 
the  witnesses  may  be — are  all  excluded.  No  enlarging  on  restrictory 
construction  can  here  apply.  It  cannot,  under  any  pretence,  be  said  that 
the  spirit  of  the  law  does  not  apply  to  any  of  the  cases  excepted;  while 
it  is  acknowledged  that  they  are  all  embraced  by  its  words:  for  the 
spirit  of  the  law,  as  well  as  its  words,  exclude  all  interests.  Yet  our 
courts  in  civil  cases,  without  any  legislative  authority,  admit  all  the  ex- 
ceptions contained  in  the  English  law.  They  admit  them  legally,  in 
all  criminal  cases,  under  the  act  of  1805;  and  they  admit  them  again, 
without  authority,  in  the  other  offences  created  by  legislative  statutes. 
Allowing  the  exceptions  thus  generally,  with  and  without  express  au- 
thority, the  propriety,  or  a  supposed  necessity,  must  have  strongly  press- 
ed upon  them;  and  therefore,  the  opinion  of  the  courts  has  been  clearly 
expressed  against  the  rule,  and  in  favour  of  the  exception. 

The  first  of  those  exceptions  is  the  case  of  a  factor  in  trade,  or  any 
other  agent,  who  makes  a  sale  or  a  contract  for  another,  on  the  amount  of 
which  he  is  to  receive  a  commission.  If  the  sale  itself,  or  the  amount 
of  the  sale,  be  disputed,  and  a  suit  be  brought  to  recover  the  amount, 
the  factor  or  agent  is  a  good  witness.  Yet  he  is  evidently  and  largely 


260  INTRODUCTORY  REPORT  TO 

interested:  if  the  sale  be  established,  he  receives  five  per  cent  or 
one-twentieth  part  of  all  that  is  recovered;  if  the  sale  be  disaffirmed,  he 
receives  nothing.  Indeed,  the  interest  in  those  cases  has  never  been 
disputed,  but  he  is  admitted  on  the  ground  of  an  alleged  necessity.  It 
is  proper  to  examine  here  in  what  sense  this  word  is  used.  It  is  em- 
ployed by,  I  believe,  all  the  judges  who  have  sanctioned  the  doctrine, 
and  can  mean  nothing  more  than  that  if  the  witness  were  not  heard, 
there  would  be  a  risk  that  some  part  of  the  truth  would  not  appear; 
for  it  must  be  observed,  that  no  inquiry  is  made  previous  to  the  ex- 
amination of  the  factor,  whether  the  sale  could  not  be  established  by 
other  evidence.  There  may  have  been  twenty  witnesses  present  when 
it  was  made,  yet  the  factor  is  examined  :  not  surely  for  want  of  other 
testimony.  Why  then  ?  The  only  answer  that  can  be  given  must  be, 
because  he  is  considered  as  a  good  witness;  because,  although  largely 
interested,  the  probability  was  in  favour  of  his  adherence  to  the  truth; 
or  that,  if  he  swerved  from  it,  his  falsehood  would  be  detected.  The 
necessity  in  this  case,  then,  differs  in  nothing  from  that  which  takes 
place  in  every  litigated  question.  The  moral  necessity  of  giving  to 
those  who  are  to  determine  the  truth  all  the  means  necessary  to  ascer- 
tain it,  and  if  it  exist  in  all.  others  where  an  interested  witness  is  pro- 
duced, then  the  deduction  is  irresistible,  that  in  all  other  cases  the  in- 
terested witness  ought  to  be  examined,  and  that  the  exception  should 
take  the  place  of  the  rule.  That  the  factor  is  admitted  as  a  witness,  not 
from  the  defect  of  other  testimony,  is  evident  from  the  reason  that  has 
been  given,  that  no  previous  inquiry  is  ever  made  on  that  subject;  con- 
sequently, he  is  admitted,  not  because  there  is  no  other  proof — but,  let 
us  suppose  no  other  evidence  to  be  in  existence,  he  is  then,  accord- 
ing to  the  language  of  the  exception,  admitted  from  necessity  :  then  it 
follows,  that  it  is  better  for  the  ends  of  justice  to  take  interested  testi- 
mony than  no  testimony.  But  if  it  be  calculated  to  mislead,  why 
should  it  be  heard  in  this  case  and  refused  in  all  others  ?  But  experi- 
ence has  shown,  that  there  is  no  danger  :  the  evident  utility  of  the  ex- 
ception, which  has  induced  learned  and  prudent  judges  to  go  beyond 
the  bounds  prescribed  by  their  constitutional  functions  in  order  to 
establish  it,  show,  that  there  is  no  danger — show,  that  it  is  useful  and  ne- 
cessary in  this  case;  and  the  reasoning,  from  the  closest  analogy,  must 
convince  us  that  it  is  so  in  all  others. 

In  every  case,  either  the  interested  witness  is  the  only  one  to 
establish  the  fact,  or  he  is  not.  If  he  be  the  only  witness,  then  he 
may  be  admitted,  according  to  the  reason  on  which  the  exception  is 
said  to  be  founded,  from  the  necessity  in  all  cases  whatever,  as  well  as 
in  that  of  the  agent.  If  he  is  not  the  only  witness,  then,  neither  in 
the  case  of  the  rule  nor  of  the  exception,  will  there  be  any  danger  in 
admitting  him  ;  for  the  other  evidence  will  give  the  means  of  detecting 
his  mis-statements  ;  or  the  knowledge  of  its  existence,  will  deter  him 
from  making  them.  Nor  will  the  alleged  necessity  exist.  Thus,  every 
reason  that  can  be  advanced  in  favour  of  admitting  the  exception,  ap- 
plies with  equal  force  to  the  abolition  of  the  rule. 

The  second  exception  to  the  rule,  and  under  the  same  plea  of  ne- 
cessity, is  that  of  a  servant,  who,  in  the  way  of  trade,  is  employed  to 
deliver  goods  to  a  purchaser  ;  or  a  clerk,  who  is  employed  to  pay 
money  to  a  creditor.  Such  servant,  in  a  suit  against  the  purchaser,  is 
a  good  witness  to  prove  the  delivery,  and  the  clerk  to  prove  the  receipt 


THE  CODE  OF  EVIDENCE.  261 

of  the  money  ;  that  is  to  say,  to  prove  that  they  did  not  themselves 
embezzle  the  property(a).  All  the  reasoning  employed  in  the  pre- 
ceding case  applies  with  equal,  if  not  greater,  force  to  this  ;  for  here 
he  is  prompted  to  charge  the  defendant,  not  only  to  save  himself  from 
loss,  but  to  preserve  his  reputation.  Yet,  in  other  cases  in  which  the 
necessity  would  seem  equally  to  exist,  the  rule  is  enforced,  and  the 
witness  is  excluded.  A  master  of  a  vessel  is  not  a  competent  witness 
to  prove  that  there  was  no  deviation  in  an  action  on  a  policy(6).  The 
driver  of  a  coach  is  not  a  good  witness  in  an  action  against  the  owner 
for  injury  done  by  negligently  driving.  Yet,  in  these  cases,  no 
one  so  well  as  the  captain  or  the  driver  could  know  whether  there  was 
deviation  or  negligence.  It  is  said,  indeed,  in  defence  of  this  distinc- 
tion, « that,  although  the  agent  is  a  competent  witness  to  prove  that 
he  acted  according  to  the  direction  of  the  principal  on  the  ground  of 
necessity,  and  because  the  principal  can  never  maintain  an  action  against 
his  agent  for  acting  according  to  his  directions,  yet,  if  the  cause  depend 
upon  the  question  whether  the  agent  has  been  guilty  of  some  tortuous 
act  or  negligence  in  the  course  of  executing  the  orders  of  the  principal, 
and  in  respect  of  which  he  would  be  liable  even  to  the  principal  if  he 
failed  in  the  action,  the  agent  is  not  competent  without  a  release."  I 
give  the  words  of  the  most  approved  treatise  on  evidence  here  to  show 
what  stuff  the  reasons,  on  which  these  distinctions  are  founded,  is 
made  of. 

The  agent  is  a  good  witness  for  the  principal  to  prove  the  payment 
of  money  or  the  delivery  of  goods  which  he  himself  may  have  em- 
bezzled. Yet  he  is  not  a  good  witness  for  the  owner  of  the  carriage 
to  show  there  was  no  negligence.  In  both  cases,  by  procuring  a  ver- 
dict for  the  owner,  he  exonerates  himself  from  any  action.  In  both 
cases,  he  is  perhaps  the  only  witness  of  the  transaction,  and  the  best 
witness  in  the  case  of  the  negligence.  One,  too,  who  lays  a  wager  on 
the  event  of  the  suit,  is  a  good  witness(c).  Why  ?  Because  he 
does  not  come  within  the  rule  ?  Surely  not.  His  interest  is  appa- 
rent. Why  then  ?  Another  exception  is  made  for  his  case,  and  another 
reason  to  support  it.  The  party  to  the  suit  has  a  right  to  the  evidence  ; 
and  the  witness  shall  not,  by  his  act,  deprive  him  of  it.  Now  what 
right  has  the  party  in  this  case  that  every  other  party  has  not  ?  Has 
not  every  party  to  every  suit  a  right  to  the  production  of  the  truth  ? 
But  the  witness,  in  this  case,  produces  the  interest  and  apparent  disa- 
bility by  his  own  act  !  So  much  stronger  the  reason  for  excluding  him. 
A  man  must  have  a  strong  hostile  feeling  to  a  prisoner  who  lays  a  wager, 
not  only  that  he  will  be  convicted,  but  that  he  (the  witness)  will  con- 
vict him(d).  Here  are  interest,  animosity,  and  perhaps  the  worst  pass- 
ions, all  combined  ;  yet  he  is  a  good  witness,  because,  say  other  au- 
thorities, the  interest  accrued  after  the  case(e)  had  arisen  in  which  he 
is  called  as  a  witness.  But  if  bare  interest  disqualifies,  then  surely  it 

(a)  2  Espin.  509.    3  Espin.  48.  (6)  Starkie  Ev.  1730. 

(c)  Skinner's  Rep.  586.  (d)  1  Strange,  652. 

(c)  In  the  strong  case  of  a  witness  to  a  will,  a  good  and  disinterested  witness  at  the  time 
of  making  the  will,  who  becomes  interested  afterwards,  cannot  be  a  witness  to  prove 
the  will,  and  the  last  intentions  of  the  testator,  although  accompanied  by  all  the  forms  of 
law,  become  frustrated  !  2  Hayward's  Rep.  147.  It  is  not,  then,  the  time  at  which  the 
interest  accrues  justifies  the  exception.  We  have  seen  that  the  other  circumstance,  its 
being  the  act  of  the  party,  would  rather  add  to,  than  diminish,  the  reason  for  excluding  him. 


INTRODUCTORY  REPORT  TO 

is  of  no  consequence  how  or  when  the  interest  accrued.  The  argument 
for  the  general  rule  is,  that  the  judge  of  the  fact  will  be  more  probably 
misled  than  enlightened  by  hearing  an  interested  witness.  If  this  were 
true,  he  ought  not  to  hear  any  interested  witness,  still  less  one  who  to 
his  interest  joins  a  strong  persuasion  or  prejudice  on  the  side  which  he 
is  called  to  support.  But  it  is  .not  true,  and  this  exception  proves  it  ! 
The  truth  is,  that  the  disqualification  from  interest  was  found  to  be  so 
inconsistent  with  principle,  that  inroads  have  constantly  been  making 
upon  it  by  exceptions,  and  1  refer  to  the  numerous  treatises  on  evidence, 
for  others,  none  of  them  supported  by  reasons  that  would  not  justify 
the  total  abolition  of  the  rule  itself. 

Another  evil  attending  it,  independent  of  the  injury  by  the  exclusion 
of  evidence,  is  the  uncertainty  it  has  introduced  in  the  law.  Cases, 
either  entirely  contradictory  to  each  other,  or  supported  by  the  most 
flimsy  distinctions,  give  to  acute  lawyers  the  means  of  defeating  justice; 
and  to  astute  judges  that  of  making  the  balance  turn  to  the  one  side  or 
the  other,  as  their  passions  or  prejudices  may  prompt,  without,  in  either 
case,  being  liable  to  the  reproach  of  acting  without  authority.  Abolish 
the  rule  in  all  cases,  and  no  such  possibility  can  exist.  The  evidence 
will  go  to  the  jury,  when  they  are  the  judges  of  the  fact;  to  the  court 
when  they  are  not;  in  both  cases,  there  will  be  the  check  of  public  opi- 
nion, which  is  either  totally  lost  or  greatly  weakened  when  the  testi- 
mony is  suppressed.  The  reasons  for  believing  or  discrediting  the 
witness  will  have  their  full  weight,  because  they  will  be  drawn  from  the 
circumstances  in  each  case.  The  advantages  will  not  be  lost  which 
arise  from  the  involuntary  or  necessary  admissions  of  truth,  which  come 
from  an  interested  witness,  even  in  the  cases  in  which  he  is  desirous  to 
deceive — from  his  manner — from  his  hesitation — even  from  his  silence. 
The  law  will  be  rendered  simple  on  a  subject  which  gives  rise  now  to 
numerous  discussions,  and  produce  great  perplexity.  The  judge  will 
no  longer  have  it  in  his  power  to  admit  or  exclude,  almost  at  his  discre- 
tion, every  witness  who  is  at  all  interested. 

This  result,  so  important  in  itself,  so  easy  of  execution,  and  so  general 
in  its  operation,  is  now  partially  obtained,  by  a  mode  which  places  the 
interest  of  the  parties  frequently  in  the  hands  of  the  witness,  by  making 
it  optional  with  him  to  give  up  or  retain  his  interest,  or  with  the  party 
to  exclude  him  when  he  is  supposed  to  be  unfavourable  by  refusing  to 
exonerate  him  from  a  liability.  This  operation  for  instantaneously 
transforming  a  bad  into  a  good  witness,  for  rendering  a  statement  cre- 
dible, which,  if  uttered  before  it  was  performed,  would  be  unworthy 
of  being  even  listened  to:  this  operation  is  called  a  release;  and,  accord- 
ing to  the  circumstances  of  the  case,  it  must  be  performed  either  by  the 
witness  or  by  the  party.  Where  the  interest  consists  in  an  emolument 
to  be  gained  by  the  witness  by  the  event  of  the  cause,  it  is  plain  that 
his  own  act  is  required  to  renounce  their  advantage.  If  he  has  a  strong 
desire  that  the  party  should  prevail,  and  his  testimony  is  material,  he 
signs  the  release,  his  evidence  is  taken,  and  the  cause  is  gained.  If  his 
wishes,  contrary  perhaps  to  an  inconsiderable  interest,  or  a  secret  in- 
terest stronger  than  the  apparent  one,  should  be  different,  he  refuses 
the  release,  and  the  party,  whom  he  might  have  saved,  loses  his  fortune, 
his  reputation,  or  his  life.  The  witness,  then,  is  the  arbiter  of  his  fatej 
not  by  perjury,  or  other  illegal  means,  but  by  the  exercise  of  a  legal 
right,  for  which  he  can  incur  neither  punishment  nor  reproach.  Again, 


THE  CODE  OF  EVIDENCE.  263 

the  interest  may  arise  from  a  liability  to  some  demand  which  may  be 
the  consequence  of  a  certain  decision  of  the  cause.  In  this  case  it  is 
evident  that  the  release  must  come  from  the  party  to  whom  the  witness 
must  pay  or  account.  If  he  give  the  release,  the  witness  is  heard;  if 
he  refuse,  the  testimony  is  rejected.  Here  again  he  becomes  the 
arbiter.  But  the  whole  of  this  is  down/ight  mummery,  unworthy  of  a 
place  in  the  jurisprudence  of  an  intelligent  people.  So  far  from  adding 
any  thing  to  the  credit  of  the  witness,  a  release  ought  nine  times  in  ten 
to  detract  from  it;  because  it  must  always  arise  from  a  stipulation  ex- 
pressed or  understood,  that  the  witness  will  state  to  the  jury  what  he 
has  before  stated  to  the  party;  and  all  these  contrivances  to  escape  from 
the  operation  of  the  exclusionary  rule,  must  demonstrate  that  it  is  un- 
wise and  unjust. 

Analogous  to  the  extraction  of  truth  from  interested  witnesses,  is 
that  of  learning  it  from  the  statements  of  the  parties  themselves.  To  a 
certain  extent  this  is  permitted  by  our  present  law.  In  the  code  now 
offered  it  is  extended,  and  alterations  are  proposed  in  the  manner  of 
obtaining  it. 

If,  on  the  one  hand,  the  parties  are  those  most  strongly  tempted  to 
alter  or  conceal  the  truth;  on  the  other,  they  are  those  whose  know- 
ledge of  the  case  best  enables  them  to  declare  it.  These  conflicting 
considerations  have,  in  the  jurisprudence  of  most  nations,  produced  the 
effects  that  might  have  been  expected  from  the  same  source  which  ex- 
cluded the  testimony  of  interested  witnesses.  A  general  rule,  with 
exceptions  founded  on  reasons  more  or  less  applicable  to  the  rule  itself, 
produced  a  continual  struggle  between  a  conviction  that  the  rule  was 
unjust  and  the  want  of  courage  to  avow  it,  and  to  break  through  the 
trammels  it  imposed.  In  England  a  party  may,  by  an  expensive  pro- 
ceeding, in  another  court,  obtain  answers,  on  oath,  to  such  questions  as 
he  may  propose  to  the  adverse  party.  In  France  the  same  power  is 
given  to  the  party,  without  the  necessity  of  resorting  to  another  court; 
and  it  is  there  extended  to  the  judge  by  what  is  called  the  decisory  oath, 
when  the  evidence  is,  by  an  artificial  scale  they  have  established  for 
graduating  it,  equally  balanced.  Here  it  is  given  to  the  party  only, 
but  in  the  same  court.  In  all  these  cases  there  are  defects,  both  of  form 
and  substance.  Of  form,  in  that  they  all  require  the  questions  to  be 
propounded  in  writing,  and  answered,  with,  I  believe,  the  exception 
of  the  decisory  oath,  in  the  same  manner,  without  cross-examination, 
and  not  in  the  presence  of  any  one  but  the  magistrate  who  attests  the 
deposition.  This  is  a  radical  defect.  Of  substance,  in  that  the  right 
of  interrogation  is  confined  to  the  opposite  party,  to  the  total  exclusion, 
in  our  system  and  that  of  England,  and  the  partial  exclusion  in  the 
French  practice,  of  the  judges  of  the  fact.  We  allow  the  plaintiff  and 
defendant  in  civil  cases  mutually  to  interrogate  each  other  by  the  ex- 
hibition of  written  questions;  if  these  are  not  categorically  answered, 
the  facts,  it  is  declared,  shall  be  taken  to  be  confessed.  This  supposes 
that  a  fact  must  always  be  stated  in  the  interrogatory,  and  the  affirm- 
ance of  that  fact  is  to  be  the  consequence  of  an  evasive  answer  or  of 
silence  with  respect  to  it.  This  is  highly  inconvenient  to  both  par- 
ties^); but  what  is  more  so,  is  that  the  answer  is  final — no  explanation 

(a)  Suppose  an  action  on  a  promise,  and  the  plaintiff,  wishing  to  establish,  by  the  oath  of 
the  defendant,  that  when  charged  with  having  made  the  promise  the  defendant  did  not 


264  INTRODUCTORY  REPORT  TO 

can  be  required  of  what  is  equivocal — no  cross  interrogatories  to  test 
the  truth  of  what  is  said,  or  procure  the  disclosure  of  what  is  omitted: 
yet  the  law  permits  the  respondent  to  go  beyond  a  mere  categorical 
affirmation  or  negative  answer;  he  may  state  circumstances  closely  con- 
nected with  the  subject  of  the  interrogatory;  and  yet  on  this  matter,  be 
it  ever  so  material  or  unexpected,  the  party  has  no  right  to  question; 
with  the  prior  interrogatory  and  the  answer  to  it,  the  whole  process 
stops.  In  considering  this  head  of  evidence,  it  appeared  to  me,  that  if 
it  were  proper  to  get  that  of  the  party,  it  should  be  got  effectually,  and 
when  we  were  applying  to  a  source  of  evidence  which  is  manifestly  the 
most  suspicious,  that  all  the  means  should  be  applied  to  render  it  full, 
correct,  and  faithful,  which  were  used  in  other  cases.  I  could  see  no 
reason  why  any  of  the  precautions,  necessary  in  cases  where  the  wit- 
ness is  supposed  to  be  impartial,  should  be  omitted.  If  we  hear  the 
party  at  all,  let  us  extract  from  him  the  whole  truth,  parts  of  which 
his  interest  may  induce  him  to  conceal:  let  us,  by  cross-examination, 
detect  all  the  falsities  that  same  interest  may  induce  him  to  frame;  let 
us,  by  the  publicity  of  the  examination  in  the  presence  of  the  parties 
and  the  judge,  and  of  that  faithful  guardian  of  private  rights,  the  keen 
gaze  of  the  public,  deter  him  from  the  difficult  task  of  swerving  from 
the  truth. 

Permit  the  party  to  ponder  over  a  written  interrogatory,  which  he 
is  to  answer  in  the  same  mode;  let  him  call  in  the  assistance  of  a  learned 
adviser  to  frame  his  deposition  in  such  a  way  as  to  avoid  the  danger  of 
perjury  on  the  one  hand,  or  avowals  injurious  to  his  interest  on  the 
other;  let  him  attest  to  this  in  the  presence  of  a  magistrate,  who  is  not 
to  judge  the  suit,  who  does  not  read  the  deposition,  and  who  hurries 
over  the  formal  words  which  convert  the  mere  statement  into  judicial 
evidence;  manage  affairs  in  this  manner,  and  the  result  will  always  be 
that  which  it  is  found  under  our  practice,  that,  in  most  cases,  the  one 
party  will  not  dare  to  probe  the  conscience  of  the  other;  more  especially 
when,  as  it  were  for  the  express  purpose  of  tempting  him  to  falsehood, 
he  is  told  whatever  you  say  shall  be  taken  for  truth,  no  matter  how 
improbable  it  is,  if  two  witnesses  cannot  be  found  to  contradict,  or  one 
witness  corroborated  by  strong  circumstantial  evidence,  or  by  written 
proof.  Surely  this  is  a  strange  inconsistency  in  our  law.  The  testi- 
mony of  a  disinterested  and  impartial  witness  is  left  to  have  what  credit 
the  judges  of  the  fact  may,  from  his  character  or  other  circumstances, 
be  inclined  to  give  him  ;  but  the  oath  of  the  most  suspicious  witness, 
the  party  himself,  the  one  most  interested  to  suppress  the  truth,  is  di- 
rected by  law  to  be  conclusive,  unless  contradicted  by  two  witnesses, 
or  one  witness  with  strong  circumstances,  or  written  proof.  And  it 
seems  scarcely  a  fair  answer  to  say,  the  party  who  called  for  his  oppo- 
nent's oath  knew  the  consequence  of  his  making  an  unfavourable  an- 
swer, and  was  at  liberty  either  to  ask  for  it  or  not.  The  question  is  not, 

deny  it,  put  this  interrogatory,  Did  you,  on  such  an  occasion,  deny  that  you  made  the  pro- 
mise ?  and  the  defendant  evades  the  question  or  refuses  to  answer  it,  what  is  the  conse- 
quence? The  fact,  in  the  interrogatory  is  taken  to  be  confessed.  But  as  far  as  there  is 
any  fact  stated,  it  is  that  the  defendant  did  deny  the  debt.  It  follows,  then,  that  the  refusal 
to  answer,  so  far  from  operating  as  a  confession  of  what  the  plaintiff  wishes  to  prove,  has  a 
directly  contrary  effect,  for  it  establishes  the  fact  that  he  did  deny  the  debt,  a  fact  which, 
perhaps,  he  would  not  directly  have  stated  on  oath. 


THE  CODE  OF  EVIDENCE.  265 

whether  he  knew  the  consequence  or  did  not  know  it;  but,  whether  the 
condition  is  just,  and  such  as  ought  to  be  imposed.  The  party  calling 
for  the  answer  shows,  by  that  act,  his  own  belief  in  the  fact  which  he 
states,  and  his  confidence  that  the  other  party  will  acknowledge  it.  If 
disappointed  in  this,  what  good  reason  can  be  given  why  he  should  be 
precluded  from  arguing,  that  other  circumstances  in  the  case,  that  the 
improbability  of  the  testimony,  or  its  inconsistency,  should  induce  the 
jury  to  give  it  no  credit  ?  Why  should  the  jury,  who  perhaps  do  not 
believe  a  word  the  party  has  declared,  be  forced  to  consider  it  as  truth  ? 
The  conviction  that  no  good  answer  can  be  given  to  the  queries,  has 
induced  the  reporter  to  propose  a  repeal  of  the  restriction,  leaving  the 
judge  of  the  fact  free  in  this,  as  in  other  instances,  to  decide  according 
to  his  belief  of  the  fact. 

The  reasoning  which  has  been  given  for  the  admission  of  interested 
witnesses  applies,  in  a  great  measure,  to  that  of  the  parties  themselves. 
But  I  have  stopped  short,  in  the  code  which  is  submitted — and  perhaps 
I  have  done  wrong  in  hesitating — I  have  stopped  short  of  making  the 
party  a  witness  for  himself,  except  in  the  case  when  a  piece  of  scriptory 
evidence,  unsigned  by  the  party,  is  produced  as  presumptive  evidence 
against  him.  In  this  case,  the  Code  gives  him  the  privilege  of  stating 
the  circumstance  under  which  it  was  written,  and  his  intent  in  writing 
it.  With  this  exception,  he  may  only  be  examined  by  the  opposite 
party,  by  the  judge,  or  by  any  one  of  the  jurors;  the  examination  must 
be  under  oath,  in  open  court,  and  subject  to  cross-examination  by  the 
opposite  party. 

The  innovation,  made  by  the  code,  in  extending  the  right  of  examin- 
ing a  party  to  the  judges  of  the  fact,  as  well  as  to  the  opposite  party, 
is  founded  on  this  reason  : — The  suitor  may  decline  examining  his  op- 
posite party  from  one  of  two  very  different  motives;  because  he  has  no 
confidence  in  his  integrity  ;  or  because  he  is  conscious  of  the  want  of 
that  quality  in  himself,  and  fears  that  the  plain  tale  of  his  adversary  may 
carry  conviction  with  it.  The  change  proposed  puts  it  in  the  power  of 
the  judge  of  the  fact,  to  do  that  which  the  party  fears  to  do,  in  the  last 
instance,  from  a  bad  motive  ;  while,  in  the  cases  where  the  reasonable 
suspicions  of  the  one  party  prevents  his  having  recourse  to  the  con- 
science of  the  other,  the  extension  of  the  great  correctives  of  oral  in- 
terrogation, with  its  concomitants,  cross-examination  and  publicity, 
lessen,  almost  to  zero,  the  chance  of  false  statements  leaving  any  im- 
pression. 

Why  the  party  is  not  allowed  to  be  examined  whenever  he  himself 
chooses,  is  not  quite  so  obviously  in  conformity  with  the  principles  of 
the  code,  which,  as  has  been  seen,  is  to  allow  no  exclusion  of  any  thing 
that  is  calculated  to  throw  light  on  the  subject;  and  it  has  been  observed, 
with  much  show  of  reason,  the  expositions  of  the  parties  are  what  the 
judge  principally  requires.  It  is  to  this  source  of  evidence  that  men, 
in  the  common  affairs  of  life,  most  resort  when  they  are  called  on  to 
decide  on  any  particular  fact.  They  hear  the  charge,  the  answer,  the  re- 
ply, the  allegations  of  both  parties,  with  all  their  circumstances  ;  then 
where  there  is  doubt,  they  look  for  other  proof,  compare  the  whole, 
and  then  decide.  Why  will  you  deprive  the  party  of  the  right  he  ought 
to  have,  of  being  heard,  of  clearing  up  doubts,  and  rectifying  errors, 
which  may  have  been  produced  by  the  inattention  or  design  of  wit- 
nesses, or  the  ambiguity  of  other  evidence  ?  This  objection  would  have 
21 


266  INTRODUCTORY  REPORT  TO 

great  force  but  for  two  circumstances,  and  perhaps  has  some  in  despite 
of  them.  For  the  first,  we  must  recur  to  another  provision  in  the  code, 
which  requires  that  all  petitions  and  answers,  in  civil  cases,  must  be 
attested  on  oath.  The  second  is,  that,  in  most  cases,  it  may  be  said  in 
all,  where  the  evidence  leaves  any  doubt,  the  power  given  to  the  judge 
and  to  the  other  party,  to  interrogate,  will  answer  the  end  proposed. 

The  article  requiring  all  petitions  and  answers  to  be  exhibited  under 
oath,  was  introduced  after  much  reflection,  and  I  ought  candidly  to 
state,  in  opposition  to  the  advice  of  some  professional  friends,  for  whose 
opinions  I  have  the  highest  respect.  They  argued  against  this,  as  well 
as  against  giving  the  right  of  interrogation  to  the  judges  of  fact,  on  the 
ground,  that  multiplying  oaths  made  them  too  common, thereby  lessening 
their  sanctity  and  force  ;  and  that  an  affidavit  to  the  truth  of  a  petition 
would  soon  become  as  proverbially  insignificant  as  a  custom-house  oath. 

1.  To  this  it  was  answered,  that  oaths  came  to  be  lightly  considered, 
not  so  much  by  the  frequency  of  the  occasion  on  which  they  were  exacted, 
as  from  other  causes;  that  among  these  causes  was  the  above,  which  this 
very  provision  was  intended  to  correct;  that  of  allowing  any  allegation 
in  a  judicial  proceeding,  made  by  a  party,  to  be  considered  as  a  matter 
of  form,  which  might  be  false,  and  yet  attach  no  blame  to  the  person 
who  swore  they  were  true  ;  that  where  pleadings  were  verbose,  tech- 
nical, and  founded  on  fictitious  forms,  the  objection  would  have  great 
weight,  because  then  the  party  would  generally  ill  understand  the  tenor 
of  the  instrument  to  which  he  attested — the  most  scrupulous  party  could 
find  it  difficult,  in  the  mass  of  an  English  bill  in  chancery,  to  distin- 
guish between  the  material  facts  and  the  formal  allegations  it  contains ; 
and  the  ready  excuse,  "  I  was  told  it  was  a  mere  matter  of  form/'  is  al- 
ways at  hand  to  satisfy  those  of  an  easier  conscience.  But  in  a  system 
which  discards  all  fictions,  where  there  is  no  form  inconsistent  with 
truth,  which  requires  facts  to  be  set  forth  in  plain  language,  as  there 
is  no  difficulty  in  distinguishing  the  truth,  neither  is  there  any  excuse 
for  falsehood  ;  and  no  more  evil  need  be  apprehended,  because  every 
suitor  is  obliged  to  attest  to  his  proceedings,  than  there  is  from  ad- 
ministering an  oath  to  every  witness.  Another  reason  why  oaths  are 
treated  with  inattention,  is  not  their  frequency,  but  the  mode  of  ad- 
ministering them,  the  essential  part  of  the  ceremony  being  performed 
by  the  magistrate  or  clerk,  who  in  a  hurried  manner,  and  often  unin- 
telligibly, repeats  the  words  of  the  attestation,  while  the  deponent  is 
not  required  to  utter  even  a  word  of  assent  to  the  obligation  on  his  con- 
science, but  signifies  it  by  a  gesture,  in  itself  of  no  meaning.  But  when, 
as  is  provided  in  the  code,  solemnity  is  added  to  the  form  of  the 
oath,  the  words  of  which  the  deponent  is  bound  to  repeat — when  he  is 
reminded  that  he  must  submit  to  cross-examination,  and  instructed  in 
the  consequences  of  his  departing  from  truth — it  may  fairly  be  pre- 
sumed that  the  additional  number  of  oaths  required  by  this  provision 
will  not  lessen  their  binding  force.  This  last  mentioned  precaution  is 
quite  new,  and  deserves  particular  consideration.  All  the  attestations, 
under  oath,  to  written  instruments,  as  our  law  now  stands,  are  not  only 
ex  parte  evidence,  but,  in  most  cases,  courts  will  admit  of  no  counter 
proof,  much  less  counter  examination  ;  and,  in  many  causes,  amend- 
ments to  such  affidavits  have  been  refused.  The  party,  or  his  counsel, 
prepare  the  declaration  with  great  care  ;  so  much  of  the  truth,  and  no 
niore,  is  set  forth  as  they  think  necessary  to  attain  the  object,  and  evea 


THE  CODE  OF  EVIDENCE.  267 

if  an  idea  inconsistent  with  the  truth  is  conveyed,  the  language  in  which 
it  may  be  couched,  by  its  equivocation,  secures  the  party  from  all  fear 
of  prosecution  for  perjury.  Here  the  whole  matter  ends.  The  proof, 
thus  furnished  by  the  party,  is  presented  to  the  judge,  who,  on  this 
evidence,  grants  the  order  demanded,  frequently  an  order  for  arrest  of 
the  person,  for  a  seizure  of  goods,  or  some  other  proceeding  in  a  cause, 
equally  important.  Here  is  the  testimony  of  the  party  himself  admitted 
in  its  worst  and  most  dangerous  form.  No  opportunity  for  cross-ex- 
amination; no  declaration  in  full;  no  appearance  of  the  deponent  before 
the  judge  ;  the  affidavit  most  frequently  being  made  before  another 
magistrate.  This  evil  was  one  of  great  magnitude,  and  to  correct  it  as 
well  in  cases  where  affidavits  are  already  admitted  as  to  prevent  its  re- 
currence in  those  now  under  discussion,  the  code  provides,  that  when- 
ever an  affidavit  shall  be  taken  in  the  course  of  judicial  proceedings, 
previous  notice  shall  be  given,  whenever  the  ends  of  justice  will  not  be 
thereby  defeated ;  but  when  that  may  be  apprehended,  the  deponent 
must  be  informed  that,  at  a  convenient  designated  time,  he  must  attend 
for  cross-examination,  and  that  wilful  falsehood  will  incur  the  same 
penalties  as  if  it  had  been  uttered  under  oath  in  open  court.  These 
precautions,  it  is  thought,  will  obviate  the  fear  of  rendering  oaths  too 
common,  and  making  parties  regardless  of  their  solemnity.  How 
far  it  would  be  proper  to  abolish  the  religious  sanction  given  to  a 
judicial  declaration,  has  been  matter  of  some  doubt.  The  regard  paid 
to  a  simple  affirmation  by  a  very  numerous  part  of  our  comnunity, 
whose  consciences  do  not  permit  them  to  take  an  oath,  would  seem  to 
indicate  that  it  might  be  done  with  safety.  But  for  the  reason  staled 
at  large  in  the  introduction  to  the  Code  of  Procedure,  this  sanction  is 
preserved  in  all  cases,  but  those  in  which  the  declarent  has  religious 
scruples. 

2.  The  other  objection  urged  against  requiring  the  oath  of  the  party  to 
his  petition  or  defence  was,  that  it  would  be  considered  as  evidence  by 
the  judges  of  the  fact,  and  that  an  undue  influence  would  thus  be  given 
to  the  powerful,  the  rich  and  the  influential,  over  the  poor  and  unknown 
suitor.  I  repeat  this  argument  because  it  was  addressed  to  me  from 
a  highly  respectable  source,  and  therefore  I  am  inclined  to  think 
there  must  be  more  force  in  it  than,  I  confess,  I  have  been  able  to  dis- 
cover. This  is  certain,  that  a  declaration  under  oath  of  any  man, 
whether  witness  or  party,  will  derive  some  credit  from  his  character 
and  the  absence  of  motives  to  falsehood,  which  his  situation  in  life  sup- 
pose ;  but  so  will  his  word  when  not  under  oath/  If  the  plaintiff, 
who  is  rich  and  esteemed,  presents  his  petition,  under  oath,  in  like 
manner  does  the  poor  and  unknown  defendant  attest  his  answer.  The 
relative  credit  of  the  parties  is  preserved.  Indeed,  of  the  two  modes, 
the  present  affords  the  greatest  advantage  to  the  man  of  credit  ;  his 
simple  assertion  will,  sometimes,  have  more  weight  than  the  oath  of 
one  of  bad  or  unknown  character,  but  would,  certainly,  other  things 
being  equal,  be  more  readily  believed  than  the  simple  declaration  of 
the  latter.  Requiring  the  oath  of  both  parties  restores,  in  a  great  mea- 
sure, the  equality.  But  if  the  objection  be  good  for  any  thing,  why 
not  apply  it  to  witnesses  as  well  as  parties?  And  for  fear  that  the  oath 
of  the  influential  man  should  preponderate  over  that  of  the  poor  and 
humble,  why  not  banish  the  oath  in  this  case  also  ?  As  the  law  now 


2G8  INTRODUCTORY  REPORT  TO 

stands,  there  is  nothing,  it  is  believed,  to  forbid  any  individual  from 
swearing  to  his  pleadings;  and  thus  it  is  optional  with  any,  who  thinks 
he  can  derive  an  advantage  from  it,  to  throw  his  oath  into  the  scale. 

Having  disposed — how  satisfactorily  the  general  assembly  will  de- 
termine— of  the  only  two  objections  made  to  the  change,  let  us  inquire 
what  are  the  advantages  proposed  by  its  adoption.  In  order  fully  to 
appreciate  these  advantages,  we  must  consider  the  objects  which  a  wise 
legislator  ought  to  aim  at  in  providing  a  mode  for  the  decision  of  con- 
tested rights.  These  are,  that  no  one  should  be  vexed  by  the  com- 
mencement of  unjust  suits;  or  delayed  or  defeated  by  a  false  defence  in 
the  prosecution  of  those  which  are  well  founded.  The  means  to  attain 
these  important  ends  are,  first,  that  the  language  of  all  law  proceedings 
should  be  simple  and  certain,  neither  involved  in  the  mystery  of  tech- 
nical language,  nor  disfigured  by  ridiculous  fictions  ;  that  there  should 
be  as  much  celerity  as  is  consistent  with  proper  deliberation  ;  no  more 
than  inevitable  expense;  and  that  every  suitor  should  be  responsible  for 
every  injurious  act  wilfully  committed.  To  effect  which  last  and  im- 
portant purpose,  it  is  essential  that,  as  far  as  possible,  there  should  be 
no  intervening  party  between  him  and  the  judge.  Without  this  re- 
sponsibility how  can  any  of  the  great  objects  of  practical  jurisprudence 
be  obtained  ?  A  frivolous  suit  is  commenced,  to  the  great  injury  of 
the  defendant.  The  plaintiff  says  truly,  "  I  never  saw  the  declaration 
that  has  been  put  in."  Or,  he  may  say,  "  I  did  see  it,  but  I  did  not 
understand  a  word  it  contained.  My  lawyer  signed  it,  and  told  me  it 
was  in  the  necessary  and  usual  form;  If  it  contains  falsehoods,  I  am 
not  answerable  for  them."  This  would  be  a  good  excuse  for  the  client, 
and  the  advocate  might  avoid  all  responsibility  by  alleging,  that  he  had 
only  put  in  technical  form  the  instructions  of  his  client.  The  proposed 
change  avoids  this  difficulty.  It  secures  responsibility;  when  the  client 
is  obliged  to  attest  what  he  alleges  on  oath  ;  when  he  is  told  by  the 
magistrate,  who  administers  it,  "Take  care  that  you  tell  nothing  but 
the  truth,  for  your  falsehood  will  incur  the  punishment  of  perjury. 
Take  care  you  tell  all  the  truth,  for  what  you  may  endeavour  to  con- 
ceal will  be  brought  out  on  a  cross-examination  before  the  judge  who 
is  to  try  the  cause,  and  the  public  who  will  form  their  opinion  of  you 
from  the  correctness  of  your  assertions."  In  the  face  of  these  cautions, 
falsehoods  and  vexatious  suits  will  be  extremely  rare.  Responsibility, 
under  this  arrangement,  can  no  longer  be  shifted  off;  and  the  certainty 
and  simplicity  so  desirable  in  legal  language,  will  be  inevitably  at- 
tained. We  have  the  honour  of  being  the  first  in  the  union,  and  that 
in  the  incipient  state  of  our  freedom,  while  we  were  yet  a  territory, 
to  reduce  legal  procedure  to  a  degree  of  simplicity  unknown,  per 
haps,  in  any  other  country(a) :  and  if  the  plain  intent  of  the  laws  for 

(a)  While  the  practice  under  the  territorial  law,  which  the  reporter  prepared  at  the 
request  of  the  legislative  council,  was  uncorrupted  by  the  introduction  of  the  common  law 
counts,  a  young  gentleman,  from  one  of  the  Atlantic  states,  applied  to  him  to  be  admitted  into 
his  office  for  the  purpose  of  becoming  acquainted  with  the  routine  of  practice,  previous  to 
his  examination ;  and  inquired,  with  much  apparent  solicitude,  in  how  long  a  time,  with 
great  assiduity,  he  might  hope  to  make  himself  master  of  its  intricacies  ?  The  answer  was, 
"  It  is  not  easy  to  calculate  to  a  minute,  but  if  you  call  on  me  to-morrow  at  two,  as  I  do  not 
dine  until  four,  I  believe  the  task  may  be  accomplished  before  we  sit  down."  The  surprise 


THE    CODE   OF  EVIDENCE.  269 

that  purpose  had  been  adhered  to,  in  practice,  this  strong  reason  for  the 
proposed  change  would  not  exist.  But,  although  those  laws  directed  the 
parties  to  state  the  facts  on  which  they  relied,  according  to  the  truth  of 
the  case,  with  the  necessary  circumstances  of  time  and  place,  yet  im- 
perceptibly all  the  common  law  counts  came  to  be  introduced  ;  and  in- 
stead of  a  plain  statement,  which  every  body  can  understand,  of  the 
manner  in  which,  and  the  time  when,  and  the  place  where,  a  sum  of 
money  became  due  from  the  defendant  to  the  plaintiff,  we  have  a  num- 
ber of  counts,  as  they  are  called,  contradictory  to  each  other,  but  all 
relating  to  the  same  transaction,  and  unintelligible  except  to  the  in- 
itiated. Counts  for  money  had  and  received,  for  money  lent,  money 
laid  out  and  expended,  as  a  ground-work,  on  which  is  raised  the  super- 
structure of  an  alleged  promise  to  pay,  never  necessary  to  be  proved. 
The  necessity  of  swearing  to  the  truth  of  the  demand  will,  as  a  first 
advantage,  bring  back  the  practice  to  its  original  purity,  and  banish  the 
fictions  which  the  common  law  education  of  most  of  our  lawyers  has 
introduced.  The  suitor  is  required  to  swear,  not  merely  that  the  ma- 
terial facts  in  his  pleadings  are  true,  which  he  frequently  does  on  the 
statement  of  his  advocate,  that  the  parts  which  he  does  not  and  cannot 
understand,  are  matters  of  form  only,  but  he  must  swear  to  the  truth 
of  the  whole  allegation  ;  and,  in  order  to  do  this,  he  must  understand 
what  is  alleged  ;  but,  to  understand  it,  it  must  be  written  in  plain  and 
simple  language,  according  to  the  fact.  Thus  several  important  points 
are  gained — clearness,  simplicity  and  the  absence  of  all  technical  jargon 
in  your  proceedings.  But  this  is  not  all.  To  diminish  the  number  of 
suits  has  always  been,  professedly  at  least,  a  great  object  with  lawgivers; 
but  unfortunately  they  have  imagined  only  one  mode  of  effecting 
this  ;  increasing  the  expenses,  vexations  and  delays  of  applications  for 
justice.  Suits  will  certainly  be  diminished  in  number,  if,  to  recover 
ten  pounds,  as  in  England,  a  disbursement  of  that  or  a  greater  sum  is 
required.  But  it  is  not  the  interest  of  any  state  that  suits  should  be 
diminished  in  that  manner.  Its  true  interest  is,  that  every  man  should 
be  deterred  from  asking  what  he  has  no  right  to  receive  ;  but  should 
recover  what  is  due  at  the  smallest  possible  expense,  and  with  the  least 
degree  of  vexntion  and  inconvenience  ;  and  that  no  man  should  be  en- 
couraged by  the  uncertainty  of  the  law,  or  the  hope  of  gaining  an 
unfair  advantage  from  any  defect  of  form  or  want  of  evidence  in  the 
prosecution  to  withhold  a  just  debt,  or  compensation  for  a  wrong.  The 
proposed  alteration,  it  is  thought,  will  most  materially  lessen  the  num- 
ber of  suits;  not  by  a  denial  of  justice,  but  by  its  certain,  easy  and  cheap 
administration.  This  will  be  effected  in  the  following  manner. 

First,  all  those  suits  will,  it  is  supposed,  be  completely  prevented,  or 
so  nearly  prevented  as  to  be  reduced  to  a  most  inconsiderable  number, 
which  are  brought  without  any  other  hope  of  success  than  that  which 
arises  from  the  defendant's  supposed  want  of  the  necessary  proof  to  dis- 
charge himself  from  an  apparently  just  demand;  for  instance,  the  plain- 
tiff having  the  evidence  that  a  sum  of  money  was  once  due  to  him,  but 
having  reason  to  believe  that  the  defendant  has  lost  the  evidence  which 
had  been  given  of  its  discharge,  brings  his  experimental  suit,  which  he 
gains  if  his  conjecture  of  the  loss  of  evidence  was  well  founded  ;  and  if 

of  one,  who  had  just  passed  some  laborious  years  in  learning  the  fictions  of  the  common  law, 
nr,iy  easily  be  conceived  at  this  reply,  in  which  there  was  little  or  no  exaggeration. 


270  INTRODUCTORY  REPORT  TO 

he  finds  himself  mistaken,  he  loses  nothing  but  the  costs.  Now,  sup- 
pose this  plaintiff  obliged,  before  he  can  commence  his  suit,  to  make 
oath  to  the  truth  of  the  charge,  will  he  risk  the  searching  interrogato- 
ries of  his  adversary,  the  danger  of  the  evidence  of  the  discharge  being 
produced,  the  punishment,  the  infamy,  that  will  await  his  detection  ? 
Certainly  not.  This  whole  class  of  cases,  then,  may  be  considered  as 
struck  off  from  the  docket. 

Next  to  those  are  the  less  numerous  cases  in  which  suits  are  brought 
merely  for  purposes  of  vexation.  As  greater  risk,  nay  a  certainty  of 
failure,  must  attend  these  ;  and  the  same  consequences  follow  the  sup- 
port of  them  by  a  false  oath,  we  may  as  reasonably  suppose  that  these 
also  will  be  swept  away. 

In  the  cases  considered,  the  party  is  supposed  to  be  conscious  of  his 
want  of  merits.  A  more  numerous  class  is  composed  of  those  in  which, 
from  irritated  feelings  or  false  information,  he  really  believes  himself 
injured  and  entitled  to  relief.  Under  these  impressions  he  has  nothing 
to  do  but  to  direct  the  suit.  The  man  who  stands  between  him  and  the 
judge,  for  the  most  part,  does  not  examine  very  closely  into  the  proof 
by  which  the  suit  is  to  be  supported:  it  is  not  his  interest  to  do  so.  He 
commences  the  suit;  and  to  commence  it  he  has  no  need  in  other  states, 
in  any  case,  and  since  the  introduction  of  the  common  law  counts,  he 
has  no  need  in  many  cases  here,  of  any  precise  information  as  to  the 
cause  of  action.  He  files  his  petition,  stuffed  with  a  variety  of  counts 
or  statements,  some  one  of  which  he  hopes  the  evidence  will  fit ;  and 
when,  in  due  time,  the  cause  is  ready  for  trial,  he  begins  to  call  for  the 
testimony,  and  finding  that  it  will  not  support  the  cause,  it  is  either 
dismissed,  continued  with  the  vague  hope  that  some  evidence  may  in 
time  be  discovered,  or  it  is  brought -on  with  no  prospect  of  success  but 
that  which  the  uncertainty  of  the  law  will  afford.  Instead  of  this  care- 
less, precipitate  mode  of  proceeding,  impose  the  necessity  of  such  a 
precise  statement  as  must  be  attested  on  oath  and  supported  by  the 
examination  of  the  party  making  it  under  the  interrogatory  of  his  ad- 
versary, and  the  causes  of  this  description  also  will  be  greatly  dimin- 
ished in  number. 

There  are  other  causes  which  may  be  readily  supposed  will,  under 
the  proposed  regulation,  restrain  plaintiffs  from  bringing  experimen- 
tal, vexatious  and  hasty  suits.  The  same  causes  will  operate  on  de- 
fendants to  make  compromises  and  settlements  before  suit  brought,  or 
prevent  a  frivolous  or  vexatious  defence  afterwards.  It  will  no  longer 
be  sufficient  for  an  attorney  to  say  for  a  party,  that  he  owes  nothing, 
or  to  put  in  any  other  plea  or  allegation  that  he  knows  to  be  false,  in 
order  to  retard  or  avoid  the  payment  of  a  just  debt  ;  or  the  perform- 
ance of  any  other  legal  obligation.  The  previous  oath,  the  all-search- 
ing subsequent  interrogation  under  the  inspection  and  in  the  hearing 
of  the  public,  will  effectually  prevent  any  false  pretence  being  made. 
The  creditor,  not  being  irritated  by  the  delay,  the  vexation,  and  the 
expense  of  a  groundless  defence,  will  be  more  lenient ;  arid  the  debtor, 
knowing  that  he  cannot  rely  on  these  shifts,  will  be  more  punctual  ;  and 
thus  the  same  measures  which  facilitate  the  recovery  of  a  legal  demand, 
will  prevent  those  from  being  made  which  are  unfounded  or  vexatious. 

Having  demonstrated,  as  it  is  hoped,  the  utility  of  requiring  that  all 
the  judicial  allegations  of  the  parties  should  be  substantiated  by  their 
oaths,  under  the  correctives  of  publicity,  cross-examination,  and  the 


THE  CODE  OF  EVIDENCE.  271 

right  of  interrogation  given  to  the  judge  and  the  jury ;  and  having  pointed 
out  the  analogous  reasoning  which  would  require  the  admission  of 
the  testimony  of  the  parties  in  the  cases  in  which  that  of  interested 
witnesses  is  permitted  ;  it  remains  only,  under  this  head,  to  give  the 
reasons  why  the  code  has  not  permitted  the  parties  to  offer  themselves 
as  witnesses  in  all  cases  without  restriction.  It  has  been  a  principle, 
in  preparing  this  plan,  not  to  be  deterred  from  proposing  any  useful 
change  by  the  mere  consideration  that  it  was  new  ;  but,  at  the  same 
time,  to  respect  existing  institutions,  so  much  as  to  innovate  no  further 
than  was  necessary  ;  and  never  where  the  useful  end  proposed  could 
be  obtained  without  shocking  established  opinions  or  prejudices  in 
favour  of  known  forms,  although  they  might  be,  in  some  degree,  in- 
convenient. 

In  the  present  instance,  the  maxim,  that  no  one  should  be  a  witness 
in  his  own  cause,  had  been  so  long  established,  as  a  self-evident  propo- 
sition, that  it  was  supposed  much  more  feasible  to  add  to  the  exceptions, 
which,  as  we  have  seen,  were  admitted  in  practice,  than  to  deny  its 
truth  ;  while,  at  the  same  time,  nearly  all  the  advantages  that  could  be 
expected  from  abolishing  it  entirely,  were  secured  by  the  extensions 
which  have  been  enumerated  ;  to  which  may  be  added,  that  although 
the  party  cannot,  except  in  the  cases  and  in  the  manner  specially  pro- 
vided for,  support  his  case  by  his  own  testimony,  yet  the  faculty  given 
to  the  judge  and  jury  to  examine  him,  will  in  very  nearly  all  cases 
supply  the  deficiency  ;  because,  having  his  oath  in  support  of  his  own 
statement,  as  set  forth  in  the  pleadings,  if  that  statement  should  be  de- 
nied or  explained  away  by  other  testimony,  the  judge  or  jury  will  na- 
turally apply  to  the  party  to  know  how  he  accounts  for  the  difference, 
and  thus  he  will  have  the  same  advantage  which  a  right  to  offer  his 
own  testimony  would  give. 

The  exclusion  of  interested  testimony  having  been  examined,  and 
found  to  be  injurious  to  the  investigation  of  truth,  and  its  admission  to 
be  attended  with  no  inconvenience  which  may  not  be  reduced  to  one 
of  a  quantity  that  has  no  assignable  value  ;  it,  of  course,  finds  no  place 
in  the  proposed  code  ;  and  with  it  disappears  one  of  the  most  fruitful 
sources  of  uncertainty,  expense,  delay  and  inconvenience,  in  the  law. 

If  the  search  after  truth  requires  that  interested  witnesses,  and  even 
the  parties  themselves,  should  be  interrogated  to  discover  it,  are  there 
any  relations,  in  which  the  offered  witness  may  stand  to  the  parties, 
that  ought  to  exclude  his  testimony  ?  By  the  English  law,  and  of 
course,  in  the  several  cases  which  have  been  noticed,  by  ours,  there  are 
several :  husband  and  wife — attorney  and  client — parties  in  the  same 
cause. 

1.  The  code  now  offered  does  not  contain  the  exclusion  of  husband  or 
wife,  as  witnesses,  for  or  against  each  other;  because  the  reporter  does 
not  find  any  one  sufficient  among  the  reasons  by  which  it  is  supported  in 
the  English  decisions  or  commentaries.  The  first  of  these  alleged  reasons 
is,  that  their  "  interests  are  identical"(a).  But  in  a  system  which  dis- 
cards interest  as  an  objection  to  competency,  this  reason  falls  of  course. 
The  second  is  said,  by  the  same  authority,  to  be  "  on  grounds  of  public 
policy"  to  prevent  distrust  and  dissension  between  them,  and  to  guard 
against  perjury.  It  is  said,  that  individual  interest  and  individual  rights 

(a)  2  Statkie,  706.    1  Bl.  443. 


272  INTRODUCTORY  REPORT  TO 

may  sometimes,  by  a  wise  legislation,  be  made  to  yield  to  the  good  of  the 
whole  community,  which  is  understood  to  be  meant  by  the  expression 
"public  policy ;"  but  those  cases  are  not  numerous,  and  generally  admit 
of  compensation,  and  ought  only  to  be  allowed  when  the  public  advantage 
is  evident  and  so  important  as  greatly  to  overbalance  the  individual 
inconvenience  which  is  incurred  to  promote  it.  In  the  case  before  us, 
the  public  evils  are  designated  :  first,  the  danger  of  domestic  dissension; 
secondly,  the  danger  of  perjury.  The  first,  if  the  evidence  should  be 
against  the  party  connected  with  the  witness  ;  the  second,  if  it  should 
go  to  exonerate  him.  The  argument  supposes,  that  if  the  husband  or 
wife  be  called  as  a  witness  in  a  suit  to  which  the  other  is  a  party,  one 
of  two  things  must  happen  ;  either  unfavourable  truths  will  be  told, 
which  it  is  said  will  disturb  the  family  peace  ;  or  perjury  will  be  com- 
mitted, to  preserve  it.  Now  these  are  two  opposite  and  contradictory 
reasons.  If  the  danger  be,  that  family  dissensions  will  grow  out  of  the 
testimony,  then  that  of  perjury  is  avoided;  if  the  danger  be  perjury,  then 
that  of  family  discord  need  not  be  apprehended.  But  legislation  must 
be  founded  on  the  general  application  of  its  reasons  ;  not  on  the  ten- 
dency of  its  measures  to  good  or  evil  in  particular  instances.  If  the 
connexion  by  marriage  be  so  close  as  to  make  the  parties  incur  the  dan- 
ger and  disgrace  of  giving  false  testimony  for  the  other,  then  let  the 
case  be  examined  solely  with  a  view  to  the  evil  of  placing  the  witness 
in  a  situation  where  strong  motives  are  offered  to  him  to  commit  a 
crime.  If  the  predominant  risk  be  that  of  destroying  domestic  har- 
mony, let  that  be  assigned  as  the  reason.  But  to  allege  both,  when 
they  are  contradictory,  is  a  strong  presumption  that  neither  can  safely  be 
relied  upon.  Both,  however,  will  be  examined,  and  both  contrasted 
with  the  evils  which  attended  the  exclusion. 

First,  let  us  suppose  that  domestic  dissension  is  the  danger  ;  that  is 
to  say,  that  one  spouse  will  quarrel  with  the  other  for  telling  the  truth, 
in  a  court  of  justice,  when  it  makes  against  the  interest  of  the  other. 
But  in  most  cases  the  interest  is  common  between  them  ;  therefore, 
there  is  little  probability  that  any  ill  will  can  be  created  in  the  mind 
of  the  one  against  the  other  for  not  committing  perjury,  in  order  to 
protect  a  common  interest.  The  supposition  that  a  domestic  broil  may 
ensue  from  a  cause  like  this,  is  to  suppose  the  party  raising  it  corrupt, 
in  expecting  falsehood  from  his  or  her  spouse,  and  malevolent  in  re- 
senting his  disappointment;  and  the  law  cannot  reasonably  be  required 
to  make  any  great  sacrifice  for  preserving  the  harmony  of  so  ill-assorted 
an  union  as  that  which  such  a  case  supposes.  The  dissension  arises 
from  the  performance  of  a  duty — bearing  open  testimony  of  the  truth  ; 
and  avoiding  a  crime — the  commission  of  perjury:  and,  because  a  brutal, 
corrupt,  or  passionate  husband,  may  quarrel  with  his  wife  for  avoiding 
the  crime,  shall  the  law  declare,  that  the  wife  shall  not  perform  the 
duty  ?  It  will  watch  over  domestic  peace  by  punishing  those  who  dis- 
turb it,  and  for  proper  causes,  by  dissolving  the  bond  of  an  ill-assorted 
connexion  :  but  it  ought  never  to  say,  the  one  party  shall  be  exempted 
from  the  performance  of  an  important  public  duty,  because  the  other  is 
tyrannical  and  unjust.  The  argument  supposes,  too,  that  there  is  greater 
danger  to  domestic  happiness  from  this  than  from  any  other  source  ; 
but  is  there  any  foundation  for  the  belief?  Not  one  case  in  a  thousand, 
it  is  believed,  will  occur  in  practice  where  any  improper  excitement 


THE  CODE  OF  EVIDENCE.  273 

will  be  created  by  an  adherence  to  the  truth,  although  it  should  militate 
against  the  wife  or  the  husband  of  the  party  who  states  it.  Why  should 
it  more  in  this  case,  than  in  that  of  any  other  witness?  Mutual  affec- 
tion, the  knowledge  that  it  was  the  performance  of  a  duty  required  by 
law,  and  that  it  could  only  be  avoided  by  a  crime,  are  so  many  and 
such  cogent  reasons  to  prevent  ill-will  on  the  occasion,  that  it  is  aston- 
ishing how  this  reason  could  find  favour  with  the  great  lawyers  who 
have  assigned  it  as  an  argument  in  favour  of  their  rule  ;  more  espe- 
cially when  they  themselves  most  explicitly  discard  this  reason  by 
declaring,  that  the  wife  shall  not  be  allowed  to  appear  as  a  witness 
against  the  husband,  even  if  he  consents,  or  after  a  divorce;  nor  against 
the  interest  of  his  heirs  after  his  death(a).  How  connubial  happiness 
can  be  disturbed  by  a  compliance  on  the  part  of  the  wife  with  her  hus- 
band's request  while  united,  or  by  any  act  after  the  connexion  has  been 
dissolved  by  death  or  divorce,  these  learned  doctors  of  the  law  alone 
can  explain. 

Examine  the  opposite  reason — the  danger  of  perjury  ;  that  is  to  say, 
the  matrimonial  union  is  so  strict,  that  the  one  party  to  it  will  incur  all 
the  dangers  of  punishment  and  infamy  rather  than  tell  the  truth  when 
it  is  injurious  to  the  other  ;  and  the  law,  it  is  said,  holds  out  this  irre- 
sistible temptation  to  the  witness  when  it  permits  him  to  be  examined. 
Yet,  by  the  preceding  argument,  the  temptation  is  easily  resisted,  the 
truth  will  be  told,  and  this  strong  connexion  is  so  weak,  that  it  is  broken 
merely  on  that  account. 

But  the  arguments  must  be  destroyed,  not  by  opposing  the  one 
to  the  other,  but  both  of  them  to  the  truth.  There  is  no  doubt  that 
in  this,  as  in  many  other  cases,  minds  may  be  found  that  will  waver 
between  the  declaration  of  a  truth  that  may  hurt  their  interests  or 
their  feelings,  and  the  assertion  of  a  falsehood  that,  in  their  opinion, 
may  secure  both  from  injury  ;  but  can  the  law  be  said  to  hold  out  a 
temptation  to  perjury  when  it  orders  a  party,  under  those  circumstan- 
ces, to  tell  the  truth  ?  If  there  were  no  temptations  to  conceal  the 
truth,  or  assert  a  falsehood,  there  would  be  no  need  of  oaths.  Oaths, 
and  the  penalties  for  breaking  them,  were  made  for  the  purpose  of  coun- 
teracting that  disposition.  If  they  were  to  be  dispensed  with  in  cases 
where  that  disposition  exists,  there  would  be  no  need  for  them  in  any 
others.  In  every  such  case,  then,  it  may  with  equal  reason  be  said, 
that  the  law  holds  out  a  temptation  to  perjury,  because  it  exacts  the  oath 
to  tell  the  truth,  when  there  is  an  inclination  to  conceal  it;  and  the  ar- 
gument would  extend  with  equal  reason  to  the  abolition  of  oaths,  and 
the  penalties  for  the  breach  of  them.  This  exclusion  is  at  variance,  too, 
with  other  provisions  of  the  law  as  they  already  exist.  The  party  him- 
self may  be  interrogated  in  chancery  in  England,  and  in  all  cases  at 
law  here.  The  wife  may  be  interrogated  to  support  an  accusation  made 
by  herself  against  her  husband  for  a  personal  injury,  in  some  cases  af- 
fecting his  life;  yet  she  is  not  permitted  to  prove  a  fact  that  would  save 
him  from  an  ignominious  death,  on  a  charge  brought  against  him  by 
another.  Now  in  all  these  cases  the  danger  of  perjury  is  equally  great, 
or  greater,  unless  we  suppose  the  attachment  of  a  wife  to  her  husband's 
interest  superior  to  his  own  ;  or  her  desire  to  make  good  her  own 
charge  less  intense  than  that  she  would  feel  to  support  the  accusation 
brought  by  another.  The  danger  of  perjury  is  no  greater  in  this  than 

(a)  2  Stark.  706.    6  East,  192. 
2  K 


274  INTRODUCTORY  REPORT  TO 

in  other  cases  in  which  it  is  incurred,  without  scruple,  in  the  dearest 
connexions  of  nature  ;  father  and  son,  mother  and  child,  brother  and 
sister,  friendships  of  the  most  intimate  kind,  habits  of  intimacy  during 
a  long  life — the  parties  to  all  these  are  every  day  arrayed  for  and  against 
each  other  as  witnesses,  and  the  law  interposes  no  other  safeguard  to 
their  consciences,  than  its  penalties,  and  the  danger  of  infamy  by  detec- 
tion. No  rule  of  exclusion  protects  the  witness  against  the  influence 
of  his  affections  or  his  interest.  He  is  heard,  and  the  degree  of  con- 
nexion is  weighed  against  his  character  and  the  probability  of  his  story; 
the  counsel  cross-examine;  the  public  inspect;  the  jury  interrogate,  and 
calculate,  and  determine  ;  and  no  inconvenience  is  felt  in  those  cases. 
Why  should  there  be  in  this  ? 

Having  stated  the  general  principle,  that  every  party  to  a  suit  has  a 
right  to  all  the  information  in  relation  to  his  cause,  of  which  he  ought 
not  to  be  deprived  but  for  reasons  of  great  public  or  private  incon- 
venience; and  examined  by  discussing  the  reasons  for  exclusion  in  this 
case,  whether  it  offers  any  such  inconvenience;  let  us  now  examine  the 
particular  evils  attached  to  the  rule  as  it  now  stands. 

In  criminal  cases  the  evil  is  most  apparent.  Suppose  the  husband, 
accused  by  positive,  but  perjured  testimony,  of  a  crime  affecting  his  life, 
and  the  wife,  the  only  witness  of  a  fact  that  would  prove  his  innocence; 
no  matter  what  circumstances  she  could  adduce  to  corroborate  her  testi- 
mony, no  matter  what  intrinsic  evidence  it  contained,  no  matter  what 
perfect  conviction  it  would  produce  of  its  truth,  it  is  sternly  excluded  ; 
and  the  innocent  husband  is  executed  because  "  public  policy  requires 
that  the  peace  of  families  should  not  be  disturbed,  and  that  no 
temptations  should  be  held  out  to  perjury."  In  this  case,  by  no 
means  an  improbable  one,  there  is  positive  evil,  cruel  injustice,  heart- 
rending distress.  In  the  case  which  the  law  attempts  to  guard  against, 
inconvenience  only,  if  it  occurs,  but  an  inconvenience  highly  improba- 
ble to  happen,  inasmuch  as  it  is  supposed  to  affect  domestic  union;  and 
as  it  is  believed  to  be  a  temptation  to  perjury,  not  one  strong  enough  to 
produce  the  effect,  or  should  it  be  yielded  to,  would  be  capable  of  de- 
tection by  the  usual  means.  But  even  without  supposing  the  extreme 
case  of  life  or  death,  the  suppression  of  testimony  is,  in  all  cases,  an 
evil ;  and  the  law  deprives  the  party  of  a  certain  right,  to  avoid  a 
problematical  inconvenience. 

On  the  other  hand,  suppose  the  testimony  of  the  wife  necessary  to 
procure  the  conviction  of  the  husband  :  she  is  the  only  witness  to  a 
murder  which  he  has  committed.  This  I  consider  the  strongest  ground 
for  the  exclusion;  it  enlists  the  feelings,  and  they  are  most  frequently 
found  on  the  right  side.  Shall  a  wife  be  forced  to  give  testimony  that 
will  condemn  her  husband,  the  father  of  her  children,  to  infamy  and 
death,  or  take  refuge  in  the  crime  of  perjury  to  avoid  it  ?  I  confess 
that  if  the  alternative  could  be  avoided,  a  humane  lawgiver  would  not 
enjoin  it;  but  if  sympathy  for  individual  distress  should  not  be  entirely 
rejected,  it  ought  never  to  be  entertained  when  its  indulgence  would 
lead  to  more  extensive  injuries  to  the  community.  A  wise  and  provi- 
dent legislator  must  have  the  consequences  of  every  legal  provision  as 
present  to  his  mind,  as  its  immediate  operation  is  to  his  senses ;  and  in 
applying  this  rule  to  the  subject  under  consideration,  he  should  not,  in 
tenderness  to  the  feelings  of  conjugal  affection,  permit  the  husband  or 
wife  to  escape  punishment  for  a  crime,  or  defraud  another  of  his  right, 


THE  CODE  OF  EVIDENCE.  275 

by  declaring  that  the  only  witness  of  the  offence,  or  the  wrong,  shall 
not  be  heard.  Some  crimes  cannot  be  perpetrated  without  the  aid  of 
an  accomplice.  The  accomplice  may  betray  the  principal.  The  fear 
of  this  treachery,  in  many  instances,  may  prevent  the  crime  ;  or  a  per- 
son may  not  be  found  willing  to  engage  in  the  enterprise.  But,  by 
the  rule  of  exclusion,  the  law  furnishes  an  assistant,  who  can  never 
betray,  and  one  who  is  always  at  hand;  and  thus  gives  a  facility  to  the 
commission  of  offences  which  no  other  circumstance  could  possibly 
offer.  Besides,  public  justice  requires,  and  common  sense  would  seem 
to  point  out,  that  those  persons  who  are  the  most  likely  to  be  acquainted 
with  the  fact  should  be  first  called  on  to  prove  it;  but  who  so  probable 
to  know  the  guilt  or  innocence  of  the  party  accused  as  the  companion 
of  all  his  hours,  the  depository  of  his  most  secret  thoughts  ;  and  what 
better  calculated  to  prevent  an  intended  crime,  than  the  knowledge  that 
those  from  whom  it  is  so  difficult  to  conceal  it,  may  be  made  the  un- 
willing witness  of  its  disclosure  ?  Precisely  in  the  proportion  that  a 
man  would  be  encouraged  to  commit  a  crime  by  the  knowledge  that 
the  person  to  whom  he  finds  it  necessary  to  confide  it,  cannot  become 
a  witness  against  him,  will  be  his  fear  of  committing  it,  when  he  knows 
that  there  is  no  person  in  whom  he  may  confide,  that  may  not  be  forced 
or  be  willing  to  betray  him. 

So  sensible  of  this  have  been  the  judicial  lawgivers  of  England,  that 
they  have  imposed  no  bar  to  the  receiving  the  testimony  of  father  and 
son,  mother  and  daughter,  brother  and  sister,  and  all  the  other  relations 
of  consanguinity  or  affinity.  They  have  had  no  regard  to  the  confi- 
dences of  friendship,  and  have  thought  that  the  affections  of  nature,  as 
well  as  those  of  habit  and  sympathetic  feeling,  should  afford  no  obstacle 
to  the  attainment  of  the  ends  of  public  justice.  They  have  gone  farther, 
and  made  an  exception  to  the  rule  which  they  laid  down,  as  one  in- 
violable, even  by  consent(a),  in  the  case  of  husband  and  wife  ;  and  as 
we  have  seen,  have  allowed  the  wife  to  be  produced  as  a  witness  against 
the  husband  on  a  prosecution  for  an  injury  done  to  herself.  Now  mark 
the  reason!  It  is  a  convenient  and  a  ready  one:  from  the  "  necessity  of 
thecase  ;"  which  must  mean,  if  it  mean  any  thing,  that  there  is  a  necess- 
ity that  crimes  should  be  punished,  and  that  unless  the  testimony  of  the 
wife  were  admitted,  they  would,  in  those  instances,  be  unpunished. 
Now,  admit  this  reasoning,  and  see  whether  it  does  not  go  to  the  utter 
destruction  of  the  rule  to  which  it  is  offered  as  an  exception.  There  is 
no  greater  necessity  for  punishing  a  crime  committed  by  the  husband 
against  his  wife  than  there  is  for  punishing  the  same  crime  committed 
by  him  against  another  ;  and  if  the  wife  is  the  only  witness  that  can 
convict  in  the  last  case,  her  testimony  is  as  necessary  as  it  is  in  the 
first;  and  being  necessary  in  both,  it  should  not  be  admitted  in  one  and 
excluded  in  the  other.  But,  in  truth,  the  inquiry  is  never  made  ;  and 
in  this,  as  in  all  the  other  cases  founded  on  the  convenient  argument  of 
necessity,  although  there  may  have  been  twenty  other  witnesses  pre- 
sent, the  pretended  necessary  witness  is  admitted  ;  and,  although  there 
may  be  none  but  him  conversant  of  the  fact,  he  is  rejected  where  it  has 
not  yet  been  deemed  convenient  to  admit  the  argument  of  necessity. 
•  2.  The  advantages  of  receiving  testimony  from  this  source  so  greatly 
overbalance  its  evils  and  the  inconveniences,  and  the  injustice  of  re- 
fa)  2  Starkie,  706.  Rep.  Temp.  Hardw.  264. 


276  INTRODUCTORY  REPORT  TO 

jecting  it  arc  so  manifest,  that  I  have  not  hesitated  to  give  this  exclusion 
no  place  in  the  code.  Not  so  with  that  arising  from  the  next  relation 
— that  of  counsel  or  attorney  and  client.  In  this  I  have  offered  little 
or  no  alteration  to  the  existing  law,  as  laid  down  by  the  latest  decisions  ; 
and  this  course  has  been  the  result  of  much  reflection,  and  has  been 
preceded  by  more  doubts  of  its  correctness,  than  I  have  found  on  any 
other  provision  of  the  work.  Although  I  have  earnestly  endeavoured 
to  discard  all  unfounded  prejudices  in  favour  of  established  and  inju- 
rious errors,  merely  because  they  were  established,  it  is  yet  possible 
that  I  may  not,  in  this  instance,  have  succeeded,  and  that  ideas  enter- 
tained during  a  professional  course  of  more  than  forty  years  may  have 
so  fastened  themselves  upon  the  mind,  as  to  give  them  a  force  they  are 
not  entitled  to,  and  induced  me  to  retain  a  provision  which  ought  to  be 
abolished.  The  legislature  must  judge  of  this  ;  and  that  they  may  do 
so,  the  arguments,  which  besides  are  not  devoid  of  interest,  for  abolishing 
and  retaining  the  provision  must  be  stated. 

The  foundation  for  the  reasoning  against  the  exclusion  is  the  ac- 
knowledged principle,  that  in  judicial  proceedings  every  thing  calculat- 
ed to  bring  the  mind  of  the  judge  to  a  just  conviction  of  the  truth 
ought  to  be  produced,  unless  the  evil  of  its  production  should  be  greater 
than  the  good  to  be  expected  from  it.  In  this  case,  say  the  arguers  on 
this  side  of  the  question,  the  evil  is  all  on  the  side  of  the  exclusion. 
The  object  is  truth  ;  who  so  like  to  know  it  as  the  confidential  adviser 
of  the  party  ?  If  the  client  have  a  just  cause,  the  advocate  can  dis- 
close nothing  to  his  prejudice.  If  he  is  in  the  wrong,  there  is  no  rea- 
son why  it  should  not  be  disclosed.  This  is  the  great  object  of  the 
law  ;  nor  will  it  be  attended  with  that  which  the  advocates  for  exclu- 
sion consider  as  the  great  evil,  the  violation  of  confidence  ;  for  all  the 
communications  between  client  and  counsel  will  be  made  with  the 
knowledge  that,  if  called  on,  the  latter  must  declare  them.  The  ex- 
clusionists,  say  their  opponents,  seem  to  consider  that  the  great  object 
of  the  law,  in  criminal  cases,  is  the  escape  of  the  guilty  ;  for  their  ob- 
jection is  founded  on  the  supposition  that  the  client  has  confessed  his 
guilt  to  his  legal  adviser  ;  and  their  rule  is  framed  in  order  to  conceal 
that  confession,  and  thus  to  favour  his  escape.  Whereas,  its  sole  aim 
is  the  punishment  of  guilt  ;  and  the  confession  of  the  party  being  the 
strongest  evidence,  ought  not  to  be  suppressed.  So  far,  they  add, 
from  the  declarations  being  dangerous  to  innocence,  it  is  one  of  its 
strongest  safeguards.  If  the  client  be  really  innocent,  he  will  make 
no  confessions  ;  and  the  declaration  of  his  counsel  that  he  has  made 
none  to  his  professional  friend,  cannot  but  be  a  presumption  in  his 
favour.  Nor  is  there  any  thing  derogatory  to  the  dignity  of  counsel, 
or  that  ought  to  affect  the  delicacy  of  his  feelings,  to  be  called  on  for 
the  confessions  of  his  client  As  a  minister  of  the  law,  his  desire  must 
"be  that  they  should  be  faithfully  executed  ;  and  whether  conviction  takes 
place  on  his  declaration  of  a  fact  communicated  by  his  client,  or  known 
from  any  other  source,  is  perfectly  immaterial  in  both  cases.  He  does 
his  duty  in  declaring  the  truth,  and  he  ought  to  feel  equally  free  from 
self-reproach  in  both.  On  the  contrary,  the  profession  is  degraded  by 
making  the  advocate,  in  effect,  the  accessary  after  the  fact,  to  a  criminal, 
by  aiding  him  to  escape  the  penalty  of  the  law,  with  a  knowledge  that 
he  has  incurred  it.  Why,  too,  it  is  asked,  will  you  extend  this  privi- 
lege to  attorneys  and  counsellors,  when  you  deny  it  in  the  case  of 


THE   CODE  OF  EVIDENCE.  277 

physicians,  friends,  or  the  nearest  relations  ?  In  these  cases  there  is 
equal  confidence  reposed,  and,  in  many  instances,  necessarily  reposed  ; 
yet  there  is  no  exclusion.  Besides,  the  contract  between  counsellor 
and  client  ought  to  be  governed  by  the  same  rules  that  are  applied  to 
other  contracts  in  relation  to  the  legality  of  their  object.  A  contract 
to  enable  one  to  defeat  the  known  operation  of  law,  would  be  reprobat- 
ed by  the  courts.  But  the  object  of  this  contract,  where  the  party  is 
guilty,  is  precisely  one  of  that  description,  and  ought  not  to  have  any 
binding  force. 

These  are  the  main  arguments,  greatly  abridged  and  undoubtedly 
weakened  in  the  operation,  by  which  it  is  contended,  that  in  all  cases 
the  counsellor  and  attorney  ought  to  be  admitted  as  witnesses  against  their 
client.  These  reasons  are  forcible,  and  some  of  the  arguments,  at  first 
view,  unanswerable  ;  but  when  maturely  considered,  they  seem  to  me 
to  rest,  for  the  most  part,  on  the  untenable  ground  that,  if  the  client 
be  innocent,  he  has  nothing  to  fear  from  the  disclosures  of  his  counsel ; 
and  that  if  he  be  guilty,  he  ought  not  to  be  protected  against  them. 
I  have  applied  the  term  untenable  to  this  basis  of  the  argument  from  a 
belief  that,  in  many  supposable  cases,  the  most  perfect  innocence  may 
suffer  from  the  disclosure  of  circumstances  necessary  to  be  communicat- 
ed to  a  professional  adviser.  In  a  civil  case,  concerning  the  title  to 
land  of  which  the  client  is  in  possession,  and  which  he  holds  under  an 
ancestor,  whose  title,  though  acquired  in  good  faith  and  for  a  valuable 
consideration,  is  defective  in  form,  the  client,  ignorant  of  the  forms 
required  by  law,  thinks  the  title  is  good,  but  having  occasion  to  make 
some  family  settlement,  shows  it  to  his  counsel,  who  immediately  per- 
ceives the  defect.  What  is  the  consequence  ?  Is  the  professional  man 
bound  to  secrecy  or  not  ?  Whatever  be  the  answer  to  this  question,  it 
seems  to  be  decisive,  at  least  in  such  a  case,  of  the  propriety  of  the  ex- 
clusion. If  he  be  not  bound  to  secrecy,  he  may,  without  blame,  im- 
mediately communicate  his  discovery  to  the  party  interested,  and  his 
innocent  and  confiding  client  is  ruined.  Every  feeling  of  justice,  hon- 
our and  humanity,  would  be  shocked  at  this  ;  and  one  of  the  most 
ingenious  opponents  of  the  exclusion  seems  to  admit,  that  the  uncalled 
for  communication  of  a  fact  of  this  nature  would  be  improper,  for  he 
excludes  it  expressly  from  his  argument,  which  he  confines  to  the 
propriety  of  obliging  the  counsel  to  answer  when  interrogated  in 
court(a).  But  if  the  counsel  be  bound  to  secrecy  before  the  trial,  why 
should  he  be  absolved  from  the  obligation  on  the  trial?  To  admit  the 
obligation  out  of  court,  is  to  acknowledge  that  it  arises  from  some  pro- 
fessional duty  ;  and  if  it  be  a  duty,  it  ought  to  be  enforced  at  all  times 
and  in  all  places,  for  it  would  be  a  strange  provision  which  imposed 
secrecy  under  pain  of  disgrace,  and  perhaps  the  censure  of  the  court, 
for  communicating  that  at  one  moment  which  the  next  it  directed  to  be 
proclaimed  to  the  world.  For  if  it  be  a  duty  to  keep  the  secrets  of  a 
client,  it  must  be  a  professional  duty,  and  can  only  be  founded  on  the 
injury  that  would  arise  to  him  from  the  breach  of  his  confidence.  But 
the  greatest  of  all  injuries  would  be  caused  by  bearing  testimony  to 
the  fact  he  wished  to  conceal.  Therefore,  to  admit  that  there  exists  a 
professional  duty  to  keep  the  communications  of  a  client  secret  before 
trial,  is  a  fortiori  admitting  that  the  same  duty  requires  them  to  be 

kept  secret  at  all  times  when  the  communication  of  them  would  injure 

\ 

(a)  Editor  of  Bentham's  Rationale  of  Jud.  Evid.,  5th  vol.  page  815. 


278  INTRODUCTORY  REPORT  TO 

the  client.  It  does  not  appear  to  be  a  fair  answer  to  say,  that  the  client 
himself  might  be  forced  to  declare  the  fact  upon  oath,  and  that,  there- 
fore, there  can  be  no  impropriety  in  drawing  the  same  declaration  from 
the  counsel :  for,  by  the  case  supposed,  and  others  which  might  be  put, 
the  adverse  party  had  no  notice  of  the  defect,  and  therefore  could  not 
have  made  it  the  foundation  of  his  suit ;  and  the  client  himself  being 
ignorant  of  the  want  of  form  in  his  title,  could  not  disclose  it. 

Again,  take  a  criminal  case.  Money  has  been  stolen,  consisting  of 
coins  not  very  common  in  the  place  where  the  fact  occurred.  The  ac- 
cused has  been  seen  to  pass  some  pieces  of  the  same  description;  other 
circumstances  cause  him  to  be  suspected.  He  has  no  proof  of  the 
manner  in  which  he  acquired  the  pieces  in  question.  He  is  innocent ; 
but  he  confesses  to  his  counsel,  that  about  the  time  of  the  loss  he  was 
in  the  chamber  where  the  theft  was  committed.  The  other  circum- 
stances would  not  be  sufficient  for  his  conviction  ;  but  this,  added  to 
them,  would  have  that  effect ;  and  there  is  no  other  proof  but  his  con- 
fession to  his  counsel.  Shall  he  be  forced  to  cause  the  conviction  of 
the  innocent  man  whom  it  is  his  duty  to  defend  ?  That  the  testimony 
of  any  other,  to  whom  the  prisoner  may  have  made  the  same  confession, 
would  have  the  same  effect  will  scarcely  be  deemed  a  good  answer, 
because  the  case  supposes  that  he  has  made  no  such  communication  ; 
and  because  it  was  necessary  to  state  his  whole  case  to  his  professional 
adviser ;  but  no  such  necessity  existing  as  to  any  other,  it  would  have 
been  an  act  of  imprudence  to  do  so,  for  the  consequences  of  which  he 
could  not  blame  the  law.  We  must  suppose,  say  those  who  argue  against 
the  exclusion,  that  all  laws  are  good,  and,  of  consequence,  that  they 
ought  to  be  executed  ;  and  the  truth,  by  whatever  means  brought  to 
light,  can  never  injure  the  innocent ,  because  no  good  law  can  ever  di- 
rect a  punishment  to  be  inflicted  on  any  but  those  who  are  convicted 
on  true  testimony.  The  disclosure  of  the  truth,  therefore,  can  only 
injure  the  guilty,  whom  it  is  the  object  of  the  law  to  punish,  but  the 
innocent  have  nothing  to  fear.  But  the  question  does  not  turn  on  the 
justice  or  injustice  of  the  law,  but  on  the  sufficiency  of  the  evidence  to 
show  a  breach  of  it.  The  law,  in  the  criminal  case  supposed,  that  forbids 
theft,  is  a  good  law  and  ought  to  be  executed  ;  but  the  effect,  upon  the 
minds  of  a  jury,  of  the  circumstantial  evidence,  adduced  to  show  the 
guilt  of  the  accused,  cannot  be  regulated  by  law  ;  and  the  true  circum- 
stance of  the  presence  of  the  party  at  the  place  where  the  fact  was 
committed,  might  lead  to  a  false  conclusion  that  he  was  the  offender, 
and  therefore  might,  with  great  propriety,  be  convicted.  So  in  civil 
cases,  circumstances  of  common  occurrence  may  be  supposed,  which, 
though  true  in  themselves,  might  probably  lead  to  a  false  conclusion  ; 
and  which  therefore  could  not,  without  injustice  to  the  client,  be  dis- 
closed by  his  advocate.  An  estate  depends  upon  the  question  of  the 
sanity  of  mind  of  a  testator.  The  law  annulling  testaments  made 
by  persons  labouring  under  insanity  is  a  good  law,  and  ought  to  be  ex- 
ecuted ;  yet  a  defendant,  holding  lands  under  a  testament  made  by  a 
person  of  sound  mind,  may  communicate  circumstances,  such  as  acts 
or  speeches  of  the  testator,  out  of  the  common  course,  which  to  a  jury, 
ignorant  of  his  habits,  might  seem  indicative  of  derangement ;  and 
thus  endanger  the  client's  good  title.  If  it  be  said  that  in  all  these  and 
other  cases  that  might  be  imagined,  the  reaction  of  the  circumstances 
would  be  accompanied  by  a  denial  of»  the  main  fact  which  they  might 
render  probable,  and  that  as  it  is  a  rule  that  the  whole  confession  must 


THE  CODE  OF  EVIDENCE.  279 

be  taken  together,  the  danger  would  be  obviated  ;  it  is  answered,  that 
the  rule  cited  is  a  good  one,  but  that  there  is  a  general  disposition  to  be- 
lieve so  much  of  a  confession  as  make  against  the  party,  and  to  disbe- 
lieve the  rest ;  and  that  moreover  the  client  in  a  confidential  conversa- 
tion with  his  counsel,  might  not  always  so  connect  the  parts  of  his 
communication  which  were  injurious  to  his  interests  with  those  which 
supported  them,  as  to  render  them  inseparable,  and  that  if  they  are  not 
so  connected,  the  rule  will  not  apply. 

All  the  reasoning  hitherto  has  been  under  the  improbable  supposition 
that,  if  the  law  were  changed,  the  client  would  go  on  to  make,  and 
the  advocate  to  receive,  the  confidential  communications  in  question. 
But  take  away  the  rule  of  exclusion  and  what  happens  ?  The  client 
does  know,  or  does  not  know,  that  his  counsel  is  obliged  to  discover  all 
he  may  communicate  to  him.  If  he  do  not  know  it,  but  proceeds  to 
state  circumstances  that  show  his  guilt,  what  is  the  counsellor  to  do- 
stop  him  short  by  a  refusal  to  hear  the  story  ?  But  why  should  he  do 
this  ?  If  the  duty  of  carrying  the  law  into  effect  obliges  him  to  dis- 
close what  he  hears,  the  same  duty  should  induce  him  to  listen  to  the 
communication.  Remember  also  the  principle  is,  that  no  dishonour 
should  be  attached  to  any  thing  that  enforces  the  execution  of  the  laws, 
that  this  is  the  first  duty  of  a  good  citizen,  and  that  it  must  follow,  as  I 
have  said,  that  the  counsellor  is  as  much  bound  to  listen  to  the  com- 
munication as  he  is  to  disclose  it  afterwards.  For,  1  think,  it  has  been 
sufficiently  shown,  that,  if  it  be  a  legal  obligation  to  state  the  confession 
when  interrogated,  there  is  a  moral  obligation  to  discover  it  before  the 
interrogation;  because  they  both  stand  on  the  same  foundation — the  duty 
of  causing  the  laws  to  be  executed  ;  and,  indeed,  the  voluntary  revela- 
tion, if  it  be  a  good  act,  would  be  more  meritorious  than  the  forced 
discovery  under  interrogatories  :  and  the  consequence  is,  that  the  pro- 
fessional man  of  high  honour,  selected  by  the  accused  to  defend  him, 
or  assigned  by  the  court  to  that  honourable  office,  must  listen  to  the 
story  of  his  confiding  client,  must  treasure  up  the  circumstances  which 
tend  to  inculpate  him,  and  then  hasten  to  the  public  prosecutor  with  the 
information  he  has  thus  obtained.  What  man  of  humanity  or  honour 
would  accept  of  such  an  office?  The  laws  must  be  executed — yes!  but 
by  such  means  as  are  not  repugnant  to  those  sentiments  of  self-respect 
which  every  good  citizen  ought  to  entertain.  To  creep  into  the  confi- 
dence of  even  a  guilty  man,  under  pretence  of  being  his  defender,  for 
the  purpose  of  bringing  him  to  justice,  is  an  act  that  never  can  be  viewed 
in  a  moral  or  respectable  light.  A  public  enemy  must  be  destroyed, 
but  not  by  poisoned  weapons.  The  means,  in  both  cases,  are  more  in- 
jurious than  the  end  is  useful. 

Take  the  other,  and  the  more  probable,  alternative.  The  law  is  known 
to  both  client  and  lawyer,  and  what  happens  ?  There  will  be  nothing 
communicated,  and  the  advocate  will  have  nothing  to  declare.  Public 
justice,  then,  acquires  nothing  by  removing  the  rule  of  exclusion.  But 
is  there  nothing  lost  on  the  score  of  humanity  ?  Are  no  advantages  taken 
from  the  innocent  by  this  fruitless  attempt  to  gain  one  over  the  guilty  ? 
The  advocate  warns  the  client  not  to  utter  any  thing  that  may  injure 
him  on  the  trial.  The  client  replies  :  "  In  order  to  enable  you  to  make 
my  defence,  I  wish  to  lay  before  you  the  whole  transaction  in  which 
this  suit,  or  this  accusation  is  founded  ;  but  I  am  an  ignorant  man.  I 
do  not  know  whether  some  of  the  circumstances  I  may  relate  can- 


280  INTRODUCTORY  REPORT  TO 

not,  by  the  ingenuity  of  my  adversary,  be  made  to  bear  against  me.  It 
will  be  best,  therefore,  for  me  to  keep  them  to  myself.  I  must  forego 
the  benefit  of  your  advice,  because  I  cannot,  without  fear  of  being  en- 
trapped, tell  you  all  you  ought  to  know."  Thus  the  great  benefit 
which  is  the  boast  of  modern  criminal  law,  allowing  counsel  to  the  ac- 
cused, is  in  most  cases  impaired,  in  many  rendered  of  no  avail.  In  the 
work  to  which  I  have  before  referred(a)  it  is  acknowledged,  that,  if  the 
exclusive  rule  were  abrogated,  no  confessions  would  be  made,  and,  of 
course,  little  or  no  information  would  be  obtained.  But  it  is  further 
contended,  that  the  exclusion  creates  a  combination  between  client  and 
lawyer,  to  protect  the  former,  although  guilty,  from  the  penalty  of  the 
law  ;  that  the  advocate  becomes,  in  effect,  the  accessary  after  the  fact, 
by  concealing  the  guilt  which  had  become  known  to  him,  and  by  aid- 
ing the  culprit  to  escape  ;  and  thus  an  act  which  would  be  culpable  in 
one,  is  made  the  subject  of  boast  in  another.  There  is  some  force  in 
these  observations,  so  far  as  they  apply  to  the  devices  by  which  solici- 
tors degrade  themselves  and  their  honourable  profession  for  the  purpose 
of  suppressing  or  perverting  testimony,  in  order  to  procure  the  acquittal 
of  their  client,  whom  they  know  to  be  guilty.  Whether  any  remedy 
can  be  found  for  this  inconvenience,  consistently  with  the  preservation 
of  the  rule  of  exclusion,  may,  perhaps,  be  doubtful ;  but  although  the 
secrecy  it  requires  may  sometimes  be  abused  in  this  manner,  yet  it  is 
not  the  necessary  consequence  of  it.  An  honourable  and  conscientious 
advocate  may  contend  for  the  acquittal  of  a  client  whom  he  may  yet,from 
circumstances  disclosed  to  him  in  his  instructions,  believe  to  be  guilty. 
He  may,  under  the  operation  of  the  present  rules  of  evidence,  do  this 
from  two  considerations  :  first,  because  he  cannot  properly  make  him- 
self the  judge  of  the  man  whose  case  he  has  undertaken  to  defend,  not 
to  decide  upon.  Secondly,  because,  while  the  rule  of  exclusion  lasts, 
the  confession  of  the  accused  to  his  counsel  is  no  evidence,  and  it  is  the 
professional  duty  of  the  advocate  to  see  that  the  accused  is  condemned 
by  legal  evidence  only.  This  supposes  no  other  combination  between 
client  and  counsel  than  one  which  goes  to  support,  not  to  defeat  the 
law.  If  the  evidence,  independent  of  the  confession  to  counsel,  be  de- 
fective, and  the  confession  be  no  evidence,  surely  there  is  no  immo- 
rality in  urging  an  acquittal.  On  the  contrary,  the  immorality  and 
illegality  would  be  in  procuring  a  conviction  which  was  not  justified  by 
legal  evidence.  The  repeal  of  the  rule  of  exclusion,  then,  is  not  re- 
quired from  this  consideration;  and  not  believing  that  any  positive  good 
would  result  from  its  abrogation,  it  has  been  retained  in  the  code — but 
confined  strictly  to  cases  of  communication  for  professional  aid,  either 
in  the  conduct  of,  or  preparation  for,  a  suit  or  defence,  or  for  advice  in 
some  lawful  occasion. 

3.  The  next  exclusion  of  testimony  applies  to  religious  confessions, 
made  to  a  priest  of  the  catholic  religion.  The  reasons  for  this  are  obvious. 
To  force  the  disclosure,  if  it  could  be  done,  would  be  a  tyrannical  invasion 
of  the  rights  of  conscience;  and  the  law  would  be  useless  if  it  could  be 
executed;  because,  in  that  case,  as  in  the  case  of  counsel  and  client 
which  has  just  been  examined,  no  confessions  would  be  made,  and  there 
would  be  nothing  to  disclose.  But,  independent  of  the  protection  of  the 
religious  duties  and  opinions  of  a  numerous  class  of  our  fellow  citizens, 

(a)  Editor  of  Bentham's  Rat.  Jud.  Proof. 


THE  CODE  OF  EVIDENCE.  281 

much  positive  good  has  resulted  from  the  institution  of  this  religious 
rite:  confession  is  calculated  to  produce  repentance  and  reformation; 
crimes  have  been  prevented,  restitutions  made,  and  unjust  litigation 
averted,  by  its  means;  and  moreover,  the  penance  imposed  by  the  priest, 
furnishes  the  means  of  inflicting  some  penalty  for  offences  that,  being 
unknown,  would  otherwise  be  unpunished.  This  rule  of  exclusion  is 
not  acknowledged  by  the  English  law(a),  although  it  has  been  enforced 
by  a  decision  in  the  state  of  New  York(6).  In  confining  this  protection 
to  the  priests  and  penitents  of  a  particular  sect,  I  was  guided  by  the  be- 
lief that,  in  no  other  sect  was  auricular  confession  made  obligatory  as  a 
religious  duty,  and  consecrated  as  one  of  the  solemn  rites  called  sacra- 
ments, as  it  is  by  that  description  of  Christians.  Professors  of  other  re- 
ligions, and  of  other  sects  of  the  same  religion,  may  seek  to  disburthen 
their  consciences  by  confession  to  a  minister  or  priest,  but  as  secrecy  in 
those  cases  is  not  a  religious  duty  in  the  clergyman,  his  conscience 
would  not  be  violated  by  exacting  a  disclosure  ;  and  as  the  confession 
is  not  obligatory  on  the  penitent,  it  must  be  considered  as  a  voluntary 
communication;  and  it  would  be  difficult  to  draw  a  distinction  between 
this  and  any  confidential  confession  to  another  individual.  Whenever 
a  religious  sect  shall  arise,  among  whose  tenets  confession  is  held  to  be 
a  religious  duty,  and  concealment  of  the  matter  in  confession  an  obliga- 
tion of  the  most  sacred  kind,  then  the  same  protection  ought  to  be 
extended  to  the  professors  and  priests  of  such  sect. 

4.  Other  descriptions  of  persons,  excluded  from  testifying  by  the 
English  law,  and  of  course  by  ours,  are  those  who  are  deemed  infamous. 
We  have  seen  the  numerous  classes  which  this  vague  description  em- 
braces in  the  Spanish  law,  which,  it  is  necessary  to  repeat,  is  also  ours 
in  civil  cases,  and  in  those  of  other  criminal  causes  than  those  designat- 
ed in  the  law  of  1805.  Nor  is  the  legal  import  of  the  term  well  defined 
by  the  English  decisions(c);  so  that,  if  it  were  proper  to  exclude  the 
testimony  of  the  infamous,  a  law  would  be  necessary  to  designate  what 
persons  ought  to  come  under  that  description.  But  it  is  thought  that 
this  will  be  rendered  unnecessary,  when  the  propriety  of  continuing  the 
exclusion  comes  to  be  considered. 

Let  us  recur  to  the  position  made  in  the  argument  against  one  of  the 
former  rules  of  exclusion,  that  no  man  will,  without  some  motive,  make 
a  false  statement  in  preference  to  one  that  is  true;  and  having  seen  that, 
even  when  that  motive  exists  in  the  shape  of  interest,  there  were  so 
many  antagonist  motives  always  at  work  as  to  render  it  more  probable 
that  truth  would  be  extracted  from  an  interested  witness,  than  that  he 
should  either  endeavour  to  deceive  or  succeed  if  he  did  attempt  it. 
Having  corne  to  this  conclusion  in  cases  when  the  motive  for  falsity 
exists,  why  should  we  hesitate  in  a  case  when  no  such  motive  appears  ? 
One  who  has  been  guilty  of  falsehood,  perjury  if  you  will,  ninety-nine 

(a)  2  Statkie,  896.     M'Nally,  258.     Peake,  77.     2  Atkins,  524. 

(b)  Smith's  case.    Philip's  case. 

(c)  Where  a  man  is  convicted  of  an  offence,  which  is  inconsistent  with  the  piinciples  of 
honesty  and  humanity,  the  law  considers  his  oath  to  be  of  no  weight,  and  excludes  his  testi- 
mony, &.c.  2  Starkie,  713.      This  is  (he  text  on  which  commentaries  have  been  made  by 
numerous  decisions,  none  of  them  denying  any  future  judge  the  right  of  declaring  any  other 
offence  to  be  contrary  to  the  principles  of  honesty  and  humanity,  and  of  course,  rendering 
those  guilty  of  it,  incompetent  witnesses. 

2  L 


282  INTRODUCTORY  REPORT  TO 

times,  will  tell  truth  the  hundredth,  if  he  expects  no  advantage  from 
concealing  it  or  telling  a  falsehood.  Remember  that  we  are  now  speak- 
ing of  infamy  alone  as  a  ground  of  exclusion,  not  infamy  coupled  with 
interest  in  the  shape  of  a  bribe,  or  any  other  motive  directly  operating 
on  the  witness.  To  justify  the  exclusion  in  such  a  case,  we  must 
suppose  that  because  a  witness  has,  for  some  advantage  received  or 
expected,  told  a  falsehood  once,  he,  without  any  advantage  to  him- 
self, without  any  motive,  forever  after  will  persevere  in  telling  false- 
hoods rather  than  truths.  Nay,  more,  we  must  suppose  that  after  hav- 
ing been  detected  and  punished  for  the  falsehoods  which  he  was  in- 
duced by  the  hope  of  gain  to  utter,  for  it  is  the  conviction  only  which 
creates  the  incompetency,  he  will,  without  the  hope  of  gain,  incur  the 
same  risk  merely  for  the  love  of  falsehood.  This  is  so  improbable,  that 
some  inducement  must  be  added,  to  render  the  perjury  probable,  and 
justify,  on  that  ground,  the  exclusion.  What  shall  that  be  ?  An  interest 
in  the  event  ?  But  we  have  seen  that  this  alone  is  not  sufficient  cause; 
nor  is  the  conviction  for  an  infamous  crime  alone  a  sufficient  cause. 
If  the  union  of  the  two  produces  that  effect,  then  the  rule  should  be, 
not  that  an  infamous,  but  that  an  infamous  and  interested  witness  ought 
not  to  be  heard.  But  the  rule,  even  thus  modified  and  restricted,  would 
be  a  bad  one,  on  account  of  the  effect  it  would  have  on  the  right  of  third 
persons,  and  on  the  security  of  the  person  and  property  of  the  party 
who  had  been  convicted.  The  most  approved  authorities,  from  which 
the  rule  is  derived,  add,  as  the  reason  on  which  it  is  founded,  "  that  the 
law  considers  the  testimony  of  one  so  convicted  as  of  too  doubtful  and  sus- 
picious a  nature  to  be  admitted  in  a  court  of  justice  to  affect  the  pro- 
perty or  liberty  of  others"(a).  This  supposes  the  testimony  of  the 
witness  always  to  be  intended  to  take  away  the  property  or  liberty  of 
another.  But  how  if  its  being  heard  be  the  only  means  of  preserving 
property,  or  liberty,  or  life  itself?  How  then  ?  Is  it  of  too  suspicious 
a  nature  to  effect  these  good  ends  ?  It  would  rather  seem  that  the 
reason  may,  in  many  cases,  be  traced  to  the  inconsiderate  legislation  of 
early  ages,  which  made  the  disability  to  testify  a  part  of  the  penalty 
for  the  offence,  intended  to  affect  the  offender  alone,  without  considering 
the  extensive  operation  it  might  have  on  the  interests  of  others;  for  we 
find  the  same  clause  introduced  into  modern  statutes,  adding,  after  other 
penalties,  "  and  shall  be  incapable  of  testifying  in  any  court  of  justice. " 
But  whatever  be  its  origin,  there  is  no  good  argument  for  its  continu- 
ance. If  there  are  some  occasions  on  which  we  may  choose  our  own 
witnesses,  there  are  many  others,  and  quite  as  important,  on  which  this 
is  regulated  by  chance.  If  the  only  and  casual  witness  of  a  transaction, 
on  which  fortune  may  depend,  happens  to  have  been  convicted  in  this, 
or  even  in  a  foreign(6),  country  of  an  infamous  crime — no  matter  what 
time  has  elapsed,  or  what  the  character  of  the  witness  may  be — he  is 

(a)  Starkie,  714,  cites  Gilh.  L.  E.  256.  2  Enlst.  154,  Br.  b.  4,  c.  19.  Ib.  b.  4,  c.  8. 
Blackstorie  gives  one  of  those  fanciful  reasons,  too  frequently  found  in  his  excellent  work,  in 
support  of  the  common  law  rules,  that  "  because  the  person  convicted  of  an  infamous  crime 
could  not  have  served  as  a  juror,  he  should  not  be  permitted  to  give  evidence  to  a  jury,  with 
whom  he  was  too  scandalous  to  associate." 

(6)  This  point  has  been  differently  decided  in  Massachusetts  and  in  Maryland.  Jn  the 
state  first  named,  the  foreign  conviction  did  not  disqualify  ;»in  the  last,  it  operates  as  an 
exclusion.  17  Mass.  515.  2  Har.  &  M'H.  120.  Ib.  373.  1  Har.  frJ.  572. 


THE  CODE  OF  EVIDENCE.  283 

incompetent.  No  matter  whether  his  testimony  is  corroborated  by 
circumstances  so  as  to  render  it  evidently  true,  or  whether  it  is  enforced 
by  being  clearly  contrary  to  his  interest,  nothing  can  render  it  fit -to 
be  heard;  truth  itself — evident,  uncontradicted,  and  incontrovertible 
truth — must  not  be  received  from  lips  that  have  once  been  polluted  by 
falsehood,  if  that  falsehood  have  received  the  condemnation  of  law; 
for,  unless  sentence  have  been  passed,  an  hundred  falsehoods,  proclaim- 
ed in  the  market-place  every  day  of  the  witness's  life,  will  hot  disqualify 
him.  But,  even  in  the  cases  where  the  witness  is  selected,  there  is  no 
security;  his  previous  conviction  may  be  unknown,  or  a  subsequent 
judgment  may  incapacitate:  and  cases  are  not  wanting  where  testa- 
ments, regularly  executed  in  the  presence  of  the  requisite  number  of 
witnesses,  have  been  set  aside(a),  and  the  will  of  the  testator  disregard- 
ed, because  one  of  those  witnesses  had,  either  previously  or  subsequent- 
ly, been  convicted  of  a  crime,  the  chief  punishment  for  which  has  thus 
fallen  on  the  innocent.  Even  life  itself  may  fall  a  sacrifice,  the  life  of 
the  innocent  by  an  ignominious  death,  to  an  adherence  to  this  rule,  and 
that  by  no  violent  supposition  of  circumstances.  A  homicide  has  been 
committed  which,  according  to  appearances,  would  be  murder,  but 
which  facts,  known  only  to  the  convicted  witness,  prove  to  have  been 
a  justifiable  act;  but  that  witness  cannot  be  heard.  Thus  fortune, 
liberty,  life  itself,  are  sacrificed  to  the  maintenance  of  a  rule  which  is 
absurdly  invoked  as  their  support. 

5.  Thus  far  the  exclusion  of  the  witness  has  been  considered  only  as 
it  may  affect  others.  But  consider  the  more  probable  operation  it  may 
have  on  the  witness,  and  through  him  on  the  public  peace.  In  the  long 
list  of  offences  against  person  or  property,  how  many  are  there  to  the 
conviction  for  which  the  testimony  of  the  party  injured  is  indispen- 
sable ?  All  these  may  be  committed  with  impunity  against  a  person 
disqualified  by  this  rule  from  giving  testimony,  and  thus  a  short  im- 
prisonment, which  the  law  may  have  affixed  as  a  sufficient  punishment 
for  the  crime,  is  changed  into  an  outlawry  of  the  most  rigorous  kind, 
by  which  the  party  is  put  completely  out  of  the  protection  of  the  law, 
and  subjected  to  depredation  on  property,  to  insults,  to  personal  injury, 
and,  if  a  female,  to  the  most  brutal  violence,  without  the  hope  of  redress. 

Here  again,  as  in  the  case  of  interest,  we  find  by  our  present  law, 
exceptions  introduced,  founded  on  reasons  which  apply  with  equal 
force  to  the  rule.  By  statute,  in  England,  a  conviction  for  petit  lar- 
ceny shall  not  disable  the  witness  ;  by  the  court  it  has  been  decided, 
that  the  affidavit  of  a  person  incapacitated  as  a  witness  by  conviction 
for  perjury  shall  be  received  as  evidence,  in  defence  of  a  charge  brought 
against  him  ;  the  judge,  Holt,  making  this  natural  reflection — "  be- 
cause he  has  been  convicted  of  perjury,  must  he,  therefore,  suffer  all  in- 
juries and  have  no  way  to  help  himself  ?"  Yet  it  never  occurred  to 
the  learned  judge,  that  this  effect  which  he  agreed  to  give  to  the  con- 
victed defendant's  affidavit,  for  a  purpose  which  concerned  himself, 
and  where,  of  course,  the  two  objections  of  interest  and  infamy  were 
combined,  ought  to  be  extended  to  the  case  where  the  interest  or  the 
life  of  a  third  person  were  in  jeopardy,  and  where  the  convicted  wit- 
ness had  no  interest  to  disguise  the  truth.  Still  less  did  it  occur  to  him 
that  the  very  words  of  his  decision  would  permit  the  convicted  person 

(a)  Mackender  v.  Mackender,  Hill.  28.  Geo.  II.     M'Nally,  Ev.  208. 


284  INTRODUCTORY  REPORT  TO 

to  make  a  complaint  for  an  injury  done  to  himself,  or  to  support  the 
prosecution  by  his  oath,  the  only  testimony,  perhaps,  in  existence  ;  for 
it  is  only  in  the  case  of  an  affidavit  to  be  used  on  an  incidental  question, 
that  the  exception  is  made  :  a  case  which,  of  all  others,  ought  not  to 
have  been  made  an  exception  ;  that  of  affidavit,  made  with  deliberation, 
in  secret,  and  attended  by  no  opportunity  for  cross-examination.  There- 
fore, we  have  the  strongest  case  in  favour  of  the  rule  made  an  excep- 
tion to  it  ;  and  the  rule  itself  applied  to  those  only  where  there  is  the 
least  danger  from  the  admission  of  the  testimony. 

Another,  and  no  less  incongruous,  exception  is,  that  made  in  favour 
of  the  accomplice,  who  is  every  day  admitted  to  testify  against  the 
principal.  Here  we  have  interest  of  the  highest  kind — the  hope,  often 
the  assurance,  of  pardon — joined  to  the  acknowledged  infamy  of  a 
participation  in  the  crime  ;  and  yet  the  witness  is  heard.  For  what 
reason,  if  the  generale  rule  of  exclusion  be  a  good  one,  should  the  ex- 
ception be  made  ?  Necessity  ?  What  necessity  ?  The  necessity  of  con- 
victing the  accused  by  false  testimony  ;  for  it  is  on  the  supposition  that 
it  will  be  false  that  you  exclude  it  in  other  cases.  If  the  evidence  be 
too  suspicious  to  be  heard  to  preserve  fortune,  liberty,  or  life,  can  it  be 
pretended  that  there  is  a  necessity  for  using  it  for  depriving  one  of 
these  blessings  ? 

The  uncertainty  of  the  rule  has  been  hinted  at,  as  one  of  the  reasons 
for  abolishing  it.  To  what  offences  shall  it  apply  ?  Particular  circum- 
stances, enumerated  in  different  books,  all  agree  that  felony  is  one 
of  them.  This  comprehensive  and  ill-defined  term  embraces  so  many 
acts,  each  employing  a  different  degree  of  depravity,  from  treason  down 
to  petit  larceny,  that  it  cannot  well  be  conceived  that  all  suppose  the 
want  of  veracity  in  those  who  are  guilty  of  them,  more  especially  of 
a  general  disposition  to  utter  falsehood  or  conceal  the  truth,  without  any 
special  motive.  To  preserve  the  rule,  therefore,  with  any  appearance 
of  consistency,  it  must  be  modified  :  a  line  must  be  drawn  between 
such  offences  as  suppose  a  particular  proneness  to  falsehood,  and  those 
which  evince  only  other  species  of  depravity.  To  have  taken  the 
losing  side  in  a  political  struggle  and  have  incurred  the  crime  of  treason, 
certainly  does  not  create  a  presumption  of  the  disposition  to  perjury; 
and  perjury  without  motive,  for  the  purpose  of  depriving  an  innocent 
stranger  of  his  fortune  or  his  life,  or  for  the  destruction  of  his  reputa- 
tion. We  must  distinguish  :  and  when  we  come  to  analyse  the  different 
offences,  in  order  to  discover  in  which  of  them  lies  this  latent  dispo- 
sition to  mendacity,  we  shall  find  it  in  none,  and  we  shall  come  to  the 
conclusion  at  which  I  have  arrived — that  the  exclusion,  in  this  case  also, 
ought  to  be  abolished. 

6.  One  more  ground  of  exclusion  remains  to  be  discussed:  that  arising 
from  religious  opinion.  The  doctrine  on  this  subject,  after  having 
gone  through  several  changes,  is  settled  as  far  as  any  thing  depending 
on  judicial  decisions  can  be  settled  into  this  rule,  that  a  disbelief  in  a 
future  state  of  rewards  and  punishments  is  the  only  cause  of  religious 
exclusion.  It  is  certain  that  this  state  of  the  mind  destroys  one  of  the 
sanctions  for  the  efficacy  of  the  oath  ;  but  that  it  is  compensated  by  the 
additional  weight  which  may  reasonably  be  supposed  to  be  given  to  one 
of  the  others,  the  moral,  honorary,  or  penal  sanction  just  as  the  priva- 
tion of  one  sense  adds  accuracy  and  sensibility  to  the  others.  The  man 
who  is  so  unfortunate  as  not  to  believe  in  a  future  state,  will  be  con- 


THE  CODE  OF  EVIDENCE.  285 

scious  of  the  disadvantage  attending  this  disbelief  upon  his  reputation, 
and  will  endeavour,  by  a  more  scrupulous  attention  to  his  conduct  and 
conversation,  to  show  that  his  want  of  faith  does  not  derogate  from  his 
respectability.     But,  without  having  recourse  to  this  supposition,  of  an 
increased  force  in  the  other  sanctions  from  the  suppression  of  one,  ought 
we  to  believe  that  the  man  who  doubts  whether  he  will  be  punished  in 
a  future  state  for  false  testimony  given  in  this,  will,  therefore,  feel  him- 
self bound  by  no  obligation  to  tell  the  truth  ;  or,  to  state  the  position 
more  truly,  will,  on  that  account,  be  more  inclined  to  falsehood  than  to 
truth  ?     May  he  not  dread  the  reproaches  of  his  conscience  in  this  life  ? 
May  not  a  moral  sense  show  him  the  utility  and  beauty  of  truth  ?  May 
not  a  sense  of  honour  make  him  disdain  the  idea  of  falsehood  ?     May 
not  the  fear  of  infamy  or  of  punishment  deter  him  ?     No,  say  the  in- 
exorable exclusionists;  we  must  have  every  security  for  the  truth  of  the 
testimony,  or  we  dare  not  trust  ourselves  with  hearing  it  ;  or  rather> 
we  must  have  this  and  we  will  dispense  with  all  the  other.     A  man  of 
profligate  character,  who  laughs  at  all  moral  duties  ;  a  dishonoured  and 
notorious  liar,  who  has  no  regard  for  reputation  ;  a  witness  who  resides 
out  of  the  reach  of  the  tribunals  which  might  bring  him  to  punishment 
for  his  perjury,  and  therefore  has  no  fears  for  the  consequences;  all  these 
may  be  heard  ;  but  the  man  of  honour,  of  integrity,  and  the  most  fear- 
ful of  the  temporal  consequences  of  an  aberration  from  truth,  cannot  be 
heard  if  he  cannot   believe  in  the  immortality  of  the  soul — a  most 
unfortunate  state  of  mind,   but  certainly  not  one  that  supposes  a  want 
of  veracity.     Belief  in  a  future  state  must  arise  either  from  reasoning 
on  probabilities,  or  from  a  conviction  of  the  truth  of  revealed  religion. 
Some  minds  may  be  so  framed  as  not  to  yield  to  the  evidence  which 
most  of  us  think  sufficient  on  these  points  ;  but  surely  an  inability 
to  draw  a  just  conclusion  from   abstract  propositions,  does  not  imply 
such  a  degradation  of  moral  principle  as  would  render  it  more  pro- 
bable   that,  without  motive,  he  would  prefer  falsehood  to  truth.     The 
religious  sanction  is  the  only  one  which,  by  this  reasoning,  will  secure 
the  truth.     But  yet,  you  will  believe  a  quaker,  who  rejects  even  the 
form  of  the  oath  ;  yet  you  will  in  a  thousand  instances,  as  in  custom- 
house declarations,  put  no  faith  in  the  oath,  which  is  unaccompanied 
by  the  other  sanctions,  and  because  little  dishonour  is  attached  to  their 
breach,  and  punishment  rarely  follows  their  violation.     If  the  truth 
could  be  demonstrated,  it  would  appear  that  the  fear  of  the  consequences 
in  a  future  state  is  not  half  so  operative,  taken  by  itself,  as  the  fear  of 
dishonour   and   punishment   here.     Therefore,    in  itself,  this  disbelief 
does  not  destroy  the  credibility  of  the  witness.     On  the  contrary,  from 
the  mode  in   which  alone  it  can  be  proved,  it  must  add  to  his  credit. 
To  avow  this  disbelief  requires  some  courage.     The  atheist  is  a  charac- 
ter not  favoured  in  society.     A  repugnance  to  utter  a  falsehood,  for  the 
most  part,  would  be  the  motive  for  making  the  avowal  ;  yet,  the  mo- 
ment he  has  given  this  evidence  of  his  regard  to  truth,  he  is  declared 
unworthy  of  belief.     If,  being  an  unbeliever,    he  answers  falsely  that 
he  believes,  he  is  a  good  witness.     If  he   answers  truly  on  this  point, 
the  presumption  is,  that  he  will  answer  untruly  to  every  other  question 
that  may  be  put  to  him  ;  for,   remember,  that   whatever  proof  you 
may  have  to  convict  him  of  disbelief,  it  must  all  end  in  that  to  be  de- 
rived from  his  own  examination.     What  he  may  have  said  or  written 
yesterday   is  no  proof  of  his  belief  to-day.     It  is  the  actual  state  of 


INTRODUCTORY  REPORT  TO 

mind  at  the  time  of  examination  that  must  be  inquired  into,  and  if 
be  believes  then,  he  is  a  good  witness  ;  and  this  state  of  mind  can  only 
be  known  from  himself. 

In  itself,  then,  the  exclusion  is  absurd.  In  its  consequences  it  is 
more  dangerous  than  any  we  have  reviewed.  Not  only  is  the  unbe- 
liever, in  common  with  the  witness  convicted  of  crime,  put  out  of  the 
protection  of  the  law,  as  to  all  injuries  to  his  person  or  property  that 
require  his  own  evidence  to  punish  or  repress  ;  not  only  in  this  case, 
as  in  that,  is  the  party  entitled  to  his  evidence  deprived  of  it,  when  it 
may  be  necessary  for  the  protection  of  his  property  or  his  life  ;  but  in 
this  case  every  kind  of  outrage  may  be  committed,  not  only  upon  the 
person  who  wants  the  necessary  faith,  but  in  the  presence  of  others  of 
the  same  description.  There  is  no  more  risk  than  if  it  were  commit- 
ted before  so  many  statues.  All  those  who,  knowing  the  offender's 
guilt,  might  wish  to  avoid  giving  testimony  against  him,  but  are  unwill- 
ing to  expose  themselves  to  the  punishment  of  perjurers  by  false  testi- 
mony, have  the  ready  means  of  avoiding  the  examination — an  avowal 
of  unbelief  is  all  that  is  necessary.  If  it  be  false,  there  can  be  no 
detection  or  punishment,  for  as  it  is  a  matter  of  belief  only,  no  one  can 
contradict  this  assertion. 

There  is  another  view  in  which  the  inquiry  into  religious  belief, 
which  must  precede  the  exclusion,  appears  highly  reprehensible.  All 
kinds  of  religion  are  by  our  laws  and  constitution  put  on  a  perfect 
equality.  He  who  believes,  he  who  doubts,  and  he  who  disbelieves, 
have  the  same  civil  rights.  Every  speculation,  as  to  the  existence  or 
non-existence  of  a  future  state,  of  the  probability  or  duration  of  rewards 
or  punishments  we  may  expect  there,  all  the  infinite  modifications  from 
mere  conjecture  to  perfect  faith,  are  all  so  many  species  of  religious 
tenets.  No  one  sect  has  a  right  to  say  to  another,  mine  is  the  true  doc- 
trine, and  therefore  I  am  entitled  to  temporal  advantages  of  which  you 
ought  to  be  deprived.  But  the  right  of  appearing  as  a  witness  against 
one  who  has  committed  a  crime  affecting  the  party,  is  a  civil  and  tem- 
poral right ;  to  deprive  him  of  it,  for  a  want  of  uniformity  of  faith  in 
any  one  point  with  the  rest  of  the  community,  is  to  deprive  him  of  it 
for  a  difference  in  religious  belief,  which  is  contrary  to  the  constitution 
and  laws. 

For  these  reasons,  all  exclusions  of  particular  persons,  as  witnesses, 
are  abolished  by  the  code,  except  in  the  instance  of  persons  insane,  and 
the  analogous  one  of  infants  whose  minds  are  not  sufficiently  developed 
to  give  information  on  the  subject  inquired  of.  But  in  these  cases 
modifications  of  the  present  law  are  introduced,  which  require  the 
'attention  of  the  general  assembly. 

As  the  law  now  stands,  the  court  decides  on  the  fact  which  is  to 
cause  the  exclusion  of  the  witness  ;  and,  although  the  jury  may  be  quite 
convinced  of  the  sanity,  or  maturity  of  judgment  of  the  witness,  he 
cannot  be  heard,  if  the  court  believes  him  either  to  have  lost,  or  not 
yet  to  have  acquired,  the  intellectual  powers  necessary  to  distinguish 
and  relate  the  truth.  By  this  code  the  determination  of  these  questions 
is  vested  in  those  who  are  to  determine  the  principal  question  ;  they 
are  to  examine  the  persons  said  to  be  insane,  and,  if  they  think  it  ne- 
cessary, other  witnesses.  They  are  also  to  examine  the  infant,  and  to 
determine,  not  by  the  usual  inquiry,  whether  he  understands  the  nature 


THE  CODE  OF  EVIDENCE.  287 

of  an  oath,  but,  by  questions  which  may  satisfy  them  "  whether  his 
faculties  are  sufficiently  developed  to  receive  correct  impressions  of 
the,  fact  relative,  to  which  he  is  interrogated,  to  relate  those  impress- 
ions correctly,  and  to  feel  the  obligation  of  doing  it  truly."  These 
are  the  only  cases  of  total  exclusion.  Those  who,  under  certain  cir- 
cumstances, cannot  testify,  are  slaves,  in  cases  affecting  free  persons  ; 
counsellors  and  attorneys,  in  the  cases  before  mentioned  ;  priests  of  the 
Catholic  religion,  in  cases  of  religious  confession  ;  and  parties  to  the 
suit,  under  the  modifications  contained  in  the  code,  and  hereinbefore 
fully  explained. 

The  constitution  also  creates  another  partial  exclusion,  or  rather  pri- 
vilege, which  a  witness  has  of  refusing  to  give  his  testimony,  when- 
ever the  answer  to  a  question  put  to  him  will  make  him  liable  to  pro- 
secution for  a  crime.  It  is  true,  that  the  words  of  the  constitution 
only  extend  this  privilege  to  criminal  prosecutions  and  to  the  accused; 
but  the  incongruity  of  forcing  a  witness  to  do  that  which  the  accused 
was  protected  against,  seemed  to  call  for  the  provision  contained  in  the 
code,  which,  Kowever,  modifies  the  rule,  as  now  understood,  so  as  to 
restrict  the  objection  to  such  answers  only  as  would  furnish  evidence 
against  the  witness  on  a  prosecution  for  a  CRIME. 

To  appreciate  properly  the  reduction  of  the  exclusionary  rules  to  this 
narrow  compass,  we  must  not  only  consider  the  advantages  it  will  have 
in  the  investigation  of  truth  on  the  trial,-  which,  it  is  hoped,  have  been 
sufficiently  demonstrated  ;  but  we  must  also  consider  the  effect  it  will 
have  in  simplifying  the  law,  rendering  a  recourse  to  it  less  expensive, 
giving  it  certainty  and  stability,  and  diminishing  the  number  of  suits. 
That  these  consequences  must  necessarily  follow,  will  be  apparent  to 
the  most  hasty  observer.  Whoever  has  opened  one  of  the  English 
treatises  on  evidence  ;  whoever  has  looked  over  the  index  to  a  volume 
of  reports,  or  into  any  of  the  abridgements,  and  examined  its  contents 
on  that  subject,  will  have  seen  how  large  a  proportion  is  occupied  with 
cases  in  which  the  competency  of  witnesses  is  discussed  ;  not  only  for 
causes  which  would  disqualify  generally,  but  for  those  which  make 
them  incompetent  to  particular  points,  or  in  particular  suits.  Most  of 
the  arguments  depending  on  nice,  and  often  fanciful,  distinctions,  and 
the  decisions  doubted,  or  confirmed,  or  overruled,  according  to  the 
judgment  or  caprices  of  a  succeeding  judge  ;  and  sometimes,  we  may 
venture  to  say,  according  to  his  respect  for,  or  jealousy  of,  his  prede- 
cessor^). But  when  the  rule  is  abolished,  all  the  exceptions  go  with 
it,  and  the  simplicity,  which  we  have  claimed  for  the  new  system,  is 
apparent.  Its  certainty  and  stability  are  derived  from  the  same  source. 
When  the  law  is  simple  and  precise,  the  courts  can  make  no  exceptions, 
as  they  did  when  they  themselves  legislated  on  the  subject ;  and  from 
those  exceptions  arose  all  the  uncertainty  and  instability  of  the  law  of 
evidence.  I  need  scarcely  add  a  word  to  prove  another  of  the  character- 
istics I'have  ascribed  to  this  change  in  the  law  ;  that  a  recourse  to  it 
would  be  had  with  less  expense  ;  for  a  few  short  articles,  and  a  single 
page,  contain  all  that  must  now  be  sought  (and  frequently  without  any 
certainty  of  success)  in  many  volumes,  and  numerous  decisions  :  its 
probable  effect,  in  diminishing  the  number  of  suits,  has  been  already, 
and  it  is  hoped  successfully,  discussed. 

(a)  See,  in  the  English  Reports,  the  numerous  cases  before  lords  Kenyori  and  Mansfield. 


288  INTRODUCTORY  REPORT  TO 

Having  determined  the  few  cases  in  which  persons  are  actually  or 
partially  excluded  from  appearing  as  witnesses,  the  code  next  regulates 
the  manner  in  which  they  are  to  be  examined;  and  here  the  entrance 
into  a  boundless  field  of  debateable  ground  is  prevented  by  a  provision, 
that,  with  the  exceptions  contained  in  the  articles  that  have  already 
been  examined,  and  the  single  additional  one  in  relation  to  leading 
questions,  every  interrogatory,  pertinent  to  the  issue,  may  be  put,  and 
must  be  answered.  No  more  debates  as  to  what  is  proper  evidence  in 
one  cause  and  what  in  another.  The  simple  inquiry  is,  will  the  answer 
to  the  question  elucidate  the  fact  in  dispute  ?  No  rules  are  given  on 
this  point,  because  none  can  be  framed  that  would  direct  the  judge 
through  the  infinite  variety  of  circumstances  in  which  they  must  be 
applied.  Whether  the  question  proposed,  therefore,  is  pertinent  to 
the  issue  or  not,  is  of  necessity  left  in  every  case  to  the  discretion  of 
the  judge. 

Leading  questions,  or  those  which  suggest  facts  to  the  witness,  are 
forbidden;  but  what  shall  be  deemed  such  is  again,  of  necessity,  left  to 
the  decision  of  the  court,  but  with  a  general  direction  not  to  prevent 
suggestions  necessary  to  recall  facts  to  the  memory  of  the  witness  when 
the  transaction  is  remote — when  from  its  nature,  it  was  not  likely  to 
have  made  a  strong  impression  on  the  mind  of  the  witness  ;  or  when, 
from  age,  indisposition,  timidity,  or  other  cause,  his  mind  is  weakened 
or  disturbed. 

The  witness  is  also  permitted  to  refresh  his  memory  by  written  notes 
made  by  himself,  or  another  by  his  direction;  and  in  all  cases,  when  his 
testimony  relates  to  accounts  or  calculations,  he  is  permitted  to  refer  to 
the  papers  or  books  containing  them. 

He  is  put  under  the  protection  of  the  court,  to  guard  against  harsh 
language,  or  what  is  called  browbeating;  and  provision  is  made  for 
giving  him  time  for  reflection  when  necessary,  and  for  rectifying  errors 
in  his  testimony. 

He  who  alledges  a  fact  judicially,  must,  if  it  be  litigated,  prove  it  ; 
but  if,  in  the  same  manner  confessed,  no  proof  need  be  adduced.  If 
neither  confessed  nor  denied  judicially,  it  must  be  proved  ;  the  oath  of 
the  party  alleging,  in  this  case,  forming  presumptive  proof. 

The  rule  requiring  that  the  best  evidence  of  the  fact  alleged  shall, 
in  all  cases,  be  produced,  is  modified  and  restricted  to  the  following 
cases  : 

1.  When  a  positive  law  has  declared,  that  to  give  validity  to  any 
species  of  contract,  it  shall  be  made  in  writing,  then  no  other  proof  shall 
be  admitted;  unless  it  be  proved,  that  the  writing  was  made,   but  has 
been  casually  lost  or  destroyed,  or,  without  the  fault  of  the  party,  placed 
without  his  reach. 

2.  When  scriptory  evidence  of  the  fact  has  been  made,  and  was  in  the 
possession  of  the  party ;  unless  it  has  been  lost  or  placed  out  of  his  reach, 
in  the  manner  above  stated. 

3.  When  positive  law  has  declared  certain  evidence  necessary  for  the 
proof  of  the  facts  designated  in  the  law. 

4.  When  the  fact  which  is  alleged,  if  true,  must  have  appeared  by  an 
authentic  act 

In  all  other  cases  where  evidence  shall  be  produced,  which  the  judge 
or  jury  shall  deem  inferior  to  other  evidence  which  is  not  produced,  it 
shall,  if  legal  evidence  be  heard,  and  the  nonproduction  of  the  other 


TO  THE  CODE  OF  EVIDENCE.  289 

shall  operate  as  presumptive  evidence,  to  have  the  weight  it  may  deserve 
according  to  the  circumstances  of  the  case,  against  the  party  failing  to 
produce  it. 

These  provisions  were  deemed  necessary  to  avoid  much  useless  and 
perplexed  investigation,  as  to  the  relative  authority  of  evidence,  which 
frequently  causes  great  injustice  in  the  exclusion  of  testimony,  and  always 
much  perplexity  in  the  argument.  The  first  of  them  was  drawn  with 
the  view  to  prevent  the  liberties  that  are  taken  by  courts  with  the  legis- 
lative will,  as  expressed  in  such  laws  as  are  known  by  the  name  of  the 
Statute  of  Frauds  in  England,  and  the  analogous  provisions  in  the  civil 
and  other  codes  of  law  :  sometimes  enforcing  the  written  law  accord- 
ing to  its  terms;  at  others,  creating  exceptions,  which  weaken,  if  they 
do  not  destroy,  its  efficacy.  Whether  the  Civil  Code  itself  ought  not 
to  contain  some  exceptions  to  the  strictness  of  this  rule  ;  and  whether, 
while  it  declares,  in  general  terms,  that  the  omission  of  formalities  shall 
vacate  the  act,  it  should  not  still  provide  for  the  cases  where  it  was  not 
in  the  power  of  the  party  to  comply  with  them — are  questions  worth 
considering  when  the  revision  of  that  code  shall  again  come  before  the 
legislature.  In  the  mean  time,  its  will,  clearly  expressed,  must  be 
obeyed.  It  is  better  that  individuals  should  suffer  from  the  operation 
of  a  law,  acknowledged  to  be  bad,  than  that  the  remedy  should  be  ap- 
plied by  unconstitutional  means.  The  one  is  a  partial,  the  other  a  general 
and  fundamental  evil. 

The  second  modification  of  the  rule  provides  for  cases  in  which  the 
parties  have  made  evidence  of  their  intentions,  and  reduced  the  same  to 
writing;  in  which  case  testimonial  evidence  cannot  be  produced,  with- 
out proving  the  loss  of  the  writing.  In  this  the  present  law  is  not 
changed. 

The  two  other  cases  need  no  explanation. 

Another  rule  of  evidencevproductive  of  much  uncertainty  of  decision, 
is  that  which  declares,  "  that  parol  evidence  shall  not  be  admitted  against 
or  beyond  what  is  contained  in  a  written  act,  nor  of  what  may  have 
been  said  before  or  at  the  time  of  making  it."  To  this,  important 
qualifications  are  added  by  the  system  now  proposed.  It  is  confined 
in  its  operation  exclusively  to  writings  containing  obligations  or  dona- 
tions, and  to  testamentary  dispositions.  These,  it  is  supposed,  will 
comprehend  all  the  cases  in  which  the  parties  may  be  supposed  to  have 
expressed  all  they  intended  on  the  subject  matter  on  which  they  wrote. 
Error,  fraud,  violence,  threats,  or  any  other  circumstance  that,  by  the 
provisions  of  the  Civil  Code,  would  avoid  or  modify  a  written  contract, 
evidently  ought  to  be  proved  by  extraneous  evidence.  Although  no 
party,  except  in  the  designated  cases,  shall  be  permitted  to  qualify  by 
testimonial  evidence  that  which  he  has  deliberately  committed  to  wri 
ting,  yet,  as  his  will  constituted  the  obligation  of  whicli  the  writing  is 
only  the  evidence,  the  opposite  party  may  resort  to  that  higher  evidence 
of  will,  which  resides  in  the  mind  of  the  other,  by  calling  on  him  to 
declare,  on  oath,  what  was  his  true  meaning.  Circumstances  are  pointed 
out  which  are  necessary  to  be  considered,  whenever  for  the  purpose  of 
defeating  a  contract,  an  allegation  is  made  of  error,  fraud,  violence,  or 
threats  ;  but  the  effect  they  are  to  have  is  left  to  the  discretion  of  the 
judges  of  the  fact. 

'  The  sanction  of  an  oath,  or  an  equivalent  affirmation,  is  required  for 
2M 


290  INTRODUCTORY  REPORT  TO 

the  reception  of  testimonial  evidence,  from  which  it  follows,  that  one 
witness,  who  is  himself  under  that  sanction,  ought  not  to  state  what 
another  had  said  who  was  under  no  such  obligation  to  tell  the  truth,  and 
whose  veracity  cannot  be  tested  by  cross-examination,  or  the  other 
means  of  discovering  it.  But  there  are  necessary  exceptions  to  this 
rule,  and  the  code  has  not  left  them  to  be  ascertained  by  judicial  legis- 
lation. They  are  the  following. 

A  witness  may  declare  what  the  party  to  the  suit,  his  agents,  or  other 
persons,  who  could  have  bound  him  by  their  contracts,  or  those,  under 
whom  such  party  claims,  have  said,  when  such  proof  is  required  by  the 
opposite  party.  What  has  been  said  relative  to  the  matter  in  dispute  in 
the  presence  and  hearing  of  one  party  to  the  suit,  may  be  given  in  evi- 
dence by  the  other,  as  a  foundation  for  a  presumption  to  be  drawn  from 
what  he  said,  or  did,  or  from  his  silence.  What  a  witness  has  said  when 
he  was  not  under  oath  may  be  proved,  to  show  that  it  was  consistent  or 
inconsistent  with  his  testimony.  If  a  witness  has  been  examined  on  a 
former  trial  between  the  same  parties,  for  the  same  cause,  what  he  has 
said  may  be  related  by  another,  if  such  witness  be  dead,  or  his  testimony 
cannot  be  procured.  In  cases  of  homicide,  what  the  deceased  has  said, 
after  receiving  the  wound,  in  relation  thereto,  may  be  given  in  evidence, 
if  his  deposition  could  not,  from  circumstances,  have  been  taken. 
When  the  declarations  of  a  party,  or  a  witness,  under  the  first  or 
second  of  the  exceptions  before  mentioned,  are  given  in  evidence, 
any  thing  said  by  another  person,  which  is  necessary  to  contradict 
or  explain  what  was  said  by  such  party  or  witness,  may  be  given 
in  evidence.  As  proof  of  the  hand-writing  of  a  witness,  who  is  dead  or 
absent,  may,  in  certain  cases,  be  admitted  as  a  presumption  that  he  would 
not  have  signed  if  he  could  not  prove  the  execution  ;  so  any  material 
declaration  of  such  witness,  to  rebut  this  presumption,  may  be  related. 
In  cases  not  depending  on  scriptory  evidence,  a  party  is  permitted  by 
the  code  to  give  evidence  of  what  he  himself  said  or  did  at  the  time  of 
the  transaction,  in  relation  to  the  matter  in  litigation,  in  order  to  explain 
his  intentions;  but  in  this,  as  in  other  cases,  he  may  be  examined  on  the 
trial  by  the  adverse  party.  There  is  a  species  of  evidence  that  is  only 
acquired  by  information  from  others  ;  it  is  that  usually  called  a  fact  of 
public  notoriety — such  as  pedigree,  and  other  facts  of  the  same  nature. 
These  are  enumerated  in  the  code,  and  the  proof  of  them  allowed. 

A  short  section  declares,  that  the  rules  for  receiving  the  oral  declara- 
tions of  a  witness,  apply  to  their  examination  on  interrogatories  ;  and 
direct,  that,  whenever  the  deposition  of  a  witness  is  taken  in  writing, 
the  question  as  well  as  the  answer  shall  be  written,  and  the  answer  re- 
corded as  given. 

This  finishes  all  the  provisions  of  the  code  in  relation  to  testimonial 
evidence. 

The  next  head  is  that  of  scriptory  evidence,  which  includes  all  kinds 
of  written  proof,  except  the  examination  of  witnesses  when  their 
evidence  is  reduced  to  writing  ;  the  term  SCRIPTORY  having  been  used 
to  designate  this  division,  because  that  of  written  evidence  would  have 
comprehended  testimonial  evidence,  when  reduced  to  writing,  as  un- 
der our  code  of  practice  it  always  may  be. 

To  argue  the  advantages  of  this  species  of  evidence,  to  speak  of  its 
certainty  and  durability,  would  be  a  useless  task,  when  addressing  the 


• 


THE  CODE  OF  EVIDENCE.  291 

legislature  of  a  state  in  which  those  advantages  have  been  so  wisely 
secured  by  laws  directing  its  employment  in  so  many  instances,  and 
under  such  a  variety  of  sanctions  as  in  this.  Of  writings,  which  may 
become  matter  of  evidence,  some  purport  to  express  the  will  of  those 
by  whom  they  are  made  ;  others  are  only  declarations  of  facts.  Of 
the  first  kind  are  those  which  are  called  the  acts  of  the  parties  whose 
will  they  purport  to  declare.  Of  the  second,  are  the  attestations  of 
public  oificers,  declaratory  that  certain  of  the  acts  were  really  made  by 
those  parties  ;  and  also,  the  written  depositions  of  witnesses.  With 
the  last,  the  depositions,  we  have  nothing,  as  has  been  said,  to  do  in 
this  division.  The  mode  of  taking  them,  and  their  effect,  and  the  persons 
by  whom  they  may  be  made,  are  pointed  out  in  the  Code  of  Procedure, 
and  in  the  former  part  of  this  report.  The  other  kinds  of  scriptory 
evidence,  properly  so  called,  are  divided  by  the  code  into  two  kinds, 
authenticated  and  unauthenticated. 

I.  Authenticated  acts  are  denned  to  be  "  such  instruments  in  writing 
as  are  attested  by  a  public  officer,  legally  authorized  for  that  purpose  in 
the  form  prescribed  by  law."  It  will  readily  be  seen  that  the  evidence 
here  is  of  two  kinds.  The  expression  of  the  will  of  the  party,  as  con- 
tained in  the  act,  and  the  declaration  of  the  attesting  officer,  that  such 
writing  does  contain  the  will  of  the  party,  and  to  avoid  any  misunder- 
standing of  the  effect  of  such  evidence,  the  code  provides,  that  it 
shall  be  proof  only  of  that  which  is  specially  attested  by  the  officer 
to  have  been  done  in  his  presence,  and  nothing  more,  and  exemplifies 
its  intent  by  some  of  the  most  common  cases  in  which  this  species  of 
evidence  is  produced.  A  bill  attested  by  the  signatures  of  the  president 
of  the  senate,  of  the  speaker  of  the  house  of  representatives,  and  of  the 
governor,  is  an  authentic  act;  but  the  signatures  prove  only  that  the 
bill,  to  which  they  are  affixed,  has  been  passed  by  the  two  houses  re- 
spectively, and  has  been  approved  by  the  governor.  The  signature  of 
the  governor  to  a  proclamation,  under  his  seal  of  office,  offering  a  re- 
ward for  apprehending  a  person  accused  of  murder,  is  authentic  evidence 
that  such  proclamation  was  issued  on  the  day  it  bears  date,  that  com- 
plaints were  made  to  him  of  the  commission  of  the  offence,  the  flight 
of  the  defendant,  or  any  other  fact  which  he  certifies  to  have  been 
done  in  his  presence;  but  it  is  not  evidence  that  the  crime  was  actually 
committed,  or  that  the  party  fled. 

The  code  divides  authentic  acts  into  four  kinds  :  legislative  acts  ;  re- 
cords of  courts  ;  records  of  the  different  executive  governments,  made 
in  the  legal  administration  of  its  different  departments,  which  are  de- 
clared to  be  authentic  acts  ;  and  written  instruments,  made  in  the  pre- 
sence of,  and  attested  by,  such  public  officer  as  is  for  that  purpose 
commissioned  according  to  law,  and  purporting  to  testify  what  is  said, 
done,  or  contracted  by  those  whose  acts  they  are. 

1.  A  section  directs  the  manner  in  which  legislative  acts  are  to  be 
proved.  In  this  the  present  law  is  not  changed,  as  now  the  production  of 
the  original  of  an  attested  copy,  or  of  the  statutes  printed  by  the  state 
printer,  are  considered  good  evidence.  The  provision  that  an  error 
in  either  of  the  kinds  of  copy  may  be  alleged  and  proved  by  collating 
them  with  the  original,  is  also,  I  apprehend,  the  law  at  this  time  ;  but 
it  was  thought  advisable  to  insert  it  in  terms.  The  mode  of  proof  of 
public  and  of  private  acts,  is  declared  to  be  the  same.  The  court  is 


292  INTRODUCTORY   REPORT  TO 

directed,  ex  officio,  to  take  notice  of  public  acts,  and  to  carry  them 
into  effect,  whether  pleaded  or  not ;  but  the  party  relying  on  a  private 
act  for  the  support  of  a  right,  or  the  privilege  of  an  exemption,  must 
allege  and  prove  it. 

Private  legislative  acts  are  those  which  concern  designated  indivi- 
duals only.  All  others  are  public  acts.  All  acts  of  incorporation,  made 
for  regulating  the  police  or  local  government  of  any  part  of  the  state  ; 
for  the  establishment  of  the  banks ;  for  authorizing  the  imposition  of 
a  toll,  of  tonnage,  wharfage,  or  other  duty  ;  for  the  establishment  of 
hospitals,  or  other  purposes  of  charity,  or  the  promotion  of  religion, 
education,  or  science,  are  specially  declared  to  be  public,  and  all  other 
incorporations  to  be  private  acts.  But  it  is  provided,  that  this  enu- 
meration is  intended  solely  for  the  purposes  of  this  title  in  the  code, 
and  does  not  affect  the  nature  or  definition  of  corporations  established 
by  law. 

2.  Judicial  records  are,  in  a  section  under  that  title,  defined,  and  the 
mode  of  authenticating  them  in  the  several  cases  of  their  being  those 
of  a  court  in  this  state,  in  another  state,  or  in  a  foreign  country.  A 
new  provision  is  introduced  to  guard  against  surprise  and  fraud.  It 
directs  that  whenever  the  certified  copy  of  a  foreign  judgment  is  intend- 
ed to  be  produced  as  evidence,  it  must  be  filed  a  specified  time  before 
the  trial,  and  notice  given  to  the  opposite  party  ;  and  if  he  shall  object 
to  the  introduction  of  such  copy,  the  party  introducing  it  must  have 
it  collated  with  the  original  and  proved,  either  by  a  witness  or  on  com- 
mission ;  and  that  if  the  copy  filed  shall  be  thus  proved  to  have  been 
a  true  one,  the  additional  expense  shall  be  borne  by  the  objecting  party. 
The  effect  of  judgments,  in  other  states  of  the  union,  or  in  foreign 
countries,  as  evidence,  is  declared  to  be  the  same  as  is  directed  in  the 
code,  in  the  chapter  on  Resjudicata,  in  relation  to  judgments  in  this 
state.  But  it  is  specially  provided,  that  no  judgment  rendered  in  a 
suit,  commenced  by  a  proceeding  in  rem,  whether  by  attachment  or 
otherwise,  shall  have  any  effect  of  the  resjudicata,  except  so  far  as  re- 
spects the  thing  seized,  unless  the  party  have  appeared  either  in  person 
or  by  attorney  and  defended  the  suit. 

To  avoid  the  enormous  expenses  attending  the  introduction  of  pro- 
ceedings in  admiralty,  when  necessary  as  evidence,  it  is  provided,  that 
whenever  the  object  is  to  prove  a  condemnation  in  a  foreign  court  of 
admiralty,  no  other  part  of  the  record  but  the  libel  and  condemnation 
need  be  produced  for  that  purpose;  and  that  no  evidence  taken  in  such 
cause  shall  be  evidence  between  the  same  parties  of  any  other  fact  than 
that  in  contestation  in  such  cause. 

3.  The  next  section  provides  for  what  is  thought  to  be  a  desideratum 
in  our  present  law.  It  gives  an  enumeration  of  the  acts  of  the  executive 
government  which  are  to  have  the  force  of  authentic  evidence,  and  the 
mode  of  their  authentication.  This  needs  no  elucidation.  A  reference 
to  the  section  itself  is  all  that  is  necessary,  both  for  its  purport  and  for 
the  reasons  of  the  different  provisions  it  contains.  It  may  be  proper, 
however,  to  remark,  that  while  special  laws  provided  for  giving  the  force 
)f  authentic  acts  to  the  records  of  courts  and  notarial  proceedings,  the 
equally  important  documents  of  an  executive  nature  were  left  for  their 
authenticity  to  the  discretion  of  the  courts;  which  admitted  or  rejected 
them,  and  gave  what  degreeof  force  to  them  that  their  judgment  directed, 


THE  CODE  OF  EVIDENCE.  293 

without  any  fixed  rules,  which,  for  the  first  time,  are  established  by  the 
proposed  code. 

4.  Notarial  acts,  and  the  various  provisions  necessary  to  establish  their 
validity,  provide  against  their  abuse,  designate  their  effects,  and  point 
out  the  cases  in  which  they  may  be  declared  void,  are  necessarily  a 
most  important  subject  in  the  Code  of  Evidence.  Forming,  as  they  do 
by  our  law,  the  principal  means  by  which  sales,  contracts,  donations, 
testaments  and  declaratory  dispositions,  in  all  their  various  forms,  are 
to  be  witnessed;  every  provision  in  relation  to  them  ought  to  be  gener- 
ally and  minutely  known  ;  and  for  that  purpose  should  be  clearly  and 
particularly  expressed.  This  it  has  been  the  endeavour  of  the  reporter 
to  do  in  the  three  subsequent  sections  of  this  chapter. 

The  first  of  them  describes  the  nature  and  prescribes  the  requisites  of 
a  notarial  act,  in  which  there  is  little  to  claim  particular  attention,  as 
the  provisions  are  chiefly  those  contained  in  different  laws  and  decisions 
on  the  same  subject,  collected  in  one  view,  and  enforced  by  precise 
enactment,  which  a  reference  to  the  section  will  fully  explain  without 
comment. 

The  same  observation,  in  substance,  may  be  made  on  the  subject  of 
the  next  section,  which  treats  of  the  effect  of  notarial  acts,  in  relation  to 
those  who  are  parties  to  them;  and  in  the  few  cases  in  which  they  may 
bear  upon  the  rights  of  others,  the  laws  and  decisions  on  the  subject 
are  embodied  and  reduced  to  short,  and,  it  is  hoped,  clear  precepts, 
which  are  illustrated  by  examples,  and  some  new  provisions  are  intro- 
duced which  require  no  explanation. 

"  For  what  causes  and  in  what  manner  notarial  acts  may  be  declared 
not  authentic,"  is  the  title  of  the  last  section  relating  to  this  matter. 
The  silence  of  our  present  law  on  this  important  topic,  required  the 
greatest  care  in  the  reduction  (a)  of  this  part  of  the  code,  and  imposes 
the  necessity  of  some  elucidations. 

The  distinguishing  characteristic  of  a  notarial  act,  that  it  is  authentic 
evidence,  in  other  words,  that  it  is  conclusive  evidence,  against  those 
who  are  parties  to  it,  rendered  it  necessary  that  many  formalities  should 
be  required  in  passing  it  to  secure  the  parties,  as  well  as  the  public, 
from  imposition.  These  are  minutely  directed  in  a  section  which  has 
already  been  referred  to.  No  officer  at  all  attentive  to  his  duty,  no 
party  not  entirely  negligent  of  his  interest,  can  mistake  them.  When 
they  are  not  attended  to,  a  presumption  will  naturally  arise  that  they  have 
been  omitted  for  some  sinister  end,  and  the  natural  corrective  would  be 
punishment.  This,  as  regards  the  officer,  has  been  provided  for  by  the 
Code  of  Crimes  and  Punishments,  in  the  shape  of  a  personal  penalty.  As 
respects  the  parties,  the  remedy  is  not  so  clear.  To  inflict  a  punishment  on 
both  would  be  clearly  unjust,  for  one  must  be  the  party  injured.  To  in- 
flict iton  either  would,  in  many  cases,  have  the  same  character.  The  party 
really  consenting  to  the  omission,  may  be  the  one  injured  by  the  neglect; 
while  the  other,  naturally  careless  of  what  it  was  the  peculiar  interest  of 
the  one  with  whom  he  contracted  to  observe,  would  overlook  the 

(a)  This  word  is  not  English,  but  1  have  ventured  to  employ  it,  from  the  absolute  want  of 
one  to  express  the  act  of  preparing  for  publication  a  work,  neither  entirely  compiled  from 
pre-existing  materials,  nor  entirely  of  original  composition,  but  like  the  code  I  now  present. 
If  there  be  an  equivalent  term  in  the  English  language,  it  does  not  occur  to  me. 


294  INTRODUCTORY  REPORT  TO 

omission  of  formalities,  by  the  neglect  of  which  he  could  only  gain. 
To  illustrate  my  meaning  by  an  example.  A  sale  is  made  before  a 
notary,  who  does  not  call  on  the  witnesses  required  by  law  to  sign  the 
act.  The  notary  is  justly  punishable  for  a  neglect  of  official  duty;  but 
a  personal  penalty  on  either  the  purchaser  or  seller,  would  be  unjust: 
on  the  purchaser,  because  he  is  the  loser  by  his  defect  of  title;  on  the 
seller,  because,  having  received  his  consideration,  he  would  leave  the 
examination  of  the  conveyance  to  the  purchaser,  contenting  himself 
with  the  perusal  of  the  act,  to  see  that  he  conveyed  what  he  had  a  right 
to  convey.  As  to  the  parties  themselves,  some  other  provision  was 
necessary  to  excite  their  attention  to  the  observance  of  forms,  rendered 
necessary  by  the  general  policy  of  the  law.  The  means  for  enforcing 
the  provisions  of  the  law,  which  first  present  themselves,  are  those 
which  operate  on  the  act  itself.  The  contract  depends  on  the  consent 
alone  of  the  parties;  the  means  of  enforcing  it  on  the  legislative  will. 
To  this  there  is  no  injustice  in  annexing  conditions.  "I  will  provide," 
says  the  lawgiver,  "  an  officer  who  shall  draw  your  contracts,  who 
shall  give  them  legal  forms  and  put  you  on  your  guard  against 
imposition,  who  shall  record  and  preserve  them,  who  shall  furnish 
you  with  copies  when  you  want  them,  which  copies  shall  have  all 
the  force  of  originals;  but  it  is  on  condition  that  the  plain  rules 
which  I  prescribe,  to  guard  against  fraud,  error  and  confusion,  shall 
be  strictly  observed.  It  is  your  interest  as  well  as  your  duty,  if 
your  intentions  are  correct,  to  observe  these  rules  on  your  parts,  and  to 
see  that  they  are  observed  by  those  with  whom  you  deal.  If  you  do 
not,  the  condition  is  broken,  and  you  lose  the  advantages  you  would 
have  had  by  observing  them.  I  will  punish  my  officer  when  he  wilfully 
or  negligently  omits  to  perform  his  duty  ;  but  unless  there  is  evidence 
of  fraud  against  you,  the  only  penalty  you  incur  is  the  loss  of  that 
character  to  your  contract  which  the  observance  of  the  rules  would  have 
attached  to  it.  Prove  your  contract  in  any  other  way,  if  it  be  a  legal 
one,  my  laws  do  not  affect  them.  I  will  even  allow  you  to  consider 
the  assent  given  to  it  by  your  signatures  as  binding  ;  but  it  cannot  be 
enforced  as  an  authentic  act."  Such  language  seems  to  be  appropriate 
to  the  occasion  in  the  mouth  of  a  just  legislator,  and  its  substance  is 
contained  in  this  part  of  the  code.  A  notarial  act,  wanting  any  of  the 
enumerated  formalities,  may  be  used  as  an  instrument  under  private 
signature,  if  it  have  those  of  the  parties;  but  it  is  not  authentic. 

The  omission  of  a  necessary  formality,  which  ought  to  appear  on  the 
face  of  the  instrument,  is  one  of  those  facts  which  the  judge  is  em- 
powered to  ascertain  by  his  own  inspection,  without  other  evidence. 
Other  omissions,  or  defects,  which  would  destroy  the  authenticity  of 
the  instrument,  may  be  proved  by  other  evidence,  the  nature  of  which 
is  designated  in  the  code. 

The  cases  in  which  notarial  acts  may  be  declared  not  authentic,  for 
causes  not  apparent  on  the  face  of  the  instrument,  are  specially  enume- 
rated. For  any  of  which,  or  for  any  such  defect  appearing  on  the  face 
of  the  instrument,  as  is  by  this  section  declared  to  destroy  its  force  as 
an  authentic  act,  it  is  provided,  that  a  suit  may  be  brought  by  any  one 
interested,  in  which  suit  the  objection  to  the  act  must  be  particularly 
set  forth,  or  the  party  may  rely  on  such  objection  as  a  bar  to  any  suit 
commenced  upon  it ;  but  in  every  such  case,  as  well  as  where  the  suit 


THE  CODE  OF  EVIDENCE.  295 

is  brought  to  have  the  act  destroyed,  the  petition  or  answer,  and  the 
causes  for  considering  it  defective,  specially  stated.  Provision  is  also 
made  for  the  production  of  the  instrument  and  giving  notice  of  the  ob- 
jections to  it,  when  it  is  used  for  some  collateral  point  in  a  cause,  and 
is  not  the  foundation  either  of  the  suit  or  of  the  defence. 

Another  article  specifies  the  cases  in  which  authentic  acts,  not  nota- 
rial, may  be  declared  invalid.  This,  with  the  provision  that  the  sen- 
tence of  a  court,  declaring  any  act  to  be  invalid  shall  be  noted  in  the 
margin,  both  of  the  copy  produced  and  of  the  original,  concludes  what 
is  contained  in  the  proposed  code  on  this  subject;  but  I  cannot  dismiss 
the  notice  of  it,  in  this  report,  without  felicitating  the  legislature  on 
our  finding  already  established,  a  system  so  admirably  adapted  to  its 
purpose  as  that  of  transfers  by  notarial  acts.  With  the  firmest  convic- 
tion of  its  advantages  over  every  other  intended  for  the  same  ends,  it 
would  have  been  difficult,  if  not  impossible,  without  the  experience  we 
have  had,  to  have  forced  the  same  conviction  on  the  people  :  and  the 
maintenance  of  the  defective  system  of  registration,  which  prevails  in 
all  the  other  states  with  more  or  less  of  inconvenience  attached  to  each, 
is  a  convincing  proof  of  the  difficulties  we  should  have  had  to  encounter 
if  we  had  been  under  the  necessity  of  removing  the  one  of  these  plans  to 
make  way  for  the  other. 

II.  We  come  now  to  consider  scriptory  evidence,  of  less  authority 
than  that  which  is  declared  to  be  authentic.  This  inferior  evidence  is 
of  two  kinds ;  that  which  is  attested  by  the  signature  of  the  party 
whose  act  it  purports  to  be,  and  is  called  an  act  under  private  signa- 
ture; and  all  other  written  evidence  not  so  attested. 

1.  The  difference  between  authentic  acts  and  those  now  under  conside- 
ration, with  thereason  for  their  different  weight  in  the  scale  of  evidence, 
is  explained  in  the  code.  No  writing,  it  is  said,  is  in  itself  evidence 
of  the  truth  of  that  which  it  contains  :  it  shows  that  certain  covenants 
are  written,  and  that  certain  names  have  been  subscribed  to  them ;  but 
it  contains  no  proof  that  those  names  were  subscribed,  or  that  those 
covenants  were  agreed  to,  by  the  parties.  To  give  them  any  validity, 
there  must  be  some  extrinsic  evidence.  This  evidence,  in  authentic 
acts,  is  supplied  by  the  credit  which  the  law  attaches  to  the  certificate 
of  the  public  officer,  and  to  the  seal  of  his  office,  which  the  courts  are 
bound,  ex-officio,  to  be  acquainted  with.  But  to  acts  under  private 
signature  no  such  credit  is  given.  The  production  of  them  does  not 
even  raise  a  simple  presumption  of  their  validity.  Proof  of  their  exe- 
cution is  required.  This  proof,  in  ordinary  cases,  is  either  the  testi- 
mony of  a  subscribing  witness,  or  of  one  who  knows  the  handwriting 
of  the  party.  The  code  has  introduced  another  and  more  simple  mode 
of  proof,  to  be  used  at  the  discretion  of  the  party.  It  directs  that 
whenever  a  suit  is  brought  on  an  instrument  made  under  private  signa- 
ture, the  original  shall  be  annexed  to  the  petition  for  the  inspection  of 
the  party  who  shall  be  summoned  to  acknowledge  or  deny  the  signa- 
ture. If  it  purport  to  be  his  own,  he  must  answer  directly  to  the 
question,  under  the  penalty  of  having  an  evasive  answer  construed  as 
a  confession.  If  the  signature  do  not  purport  to  be  his  own,  but  that 
of  some  one  whose  engagement  would  bind  him,  and  he  is  acquainted 
with  the  handwriting,  he  must  answer  whether  he  knows  or  believes 
the  signature  to  be  genuine.  If  he  is  not  acquainted  with  the  handwriting, 


296  INTRODUCTORY  REPORT  TO 

he  must  say  so.  If  acknowledged,  the  instrument  then  becomes  an 
authentic  act.  But  evidence  may  be  received  of  any  fact  which  would 
show  that,  from  any  cause,  it  ought  not  to  be  enforced.  If  not  ac- 
knowledged, proof  must  be  made  as  in  ordinary  cases.  These  different 
effects  are  particularly  set  forth  in  the  code,  as  well  as  the  circum- 
stances under  which  recourse  may  be  had  to  proof  by  comparison  of 
hands,  and  the  mode  in  which  such  evidence  is  to  be  received. 

The  perfection  with  which  the  handwriting  may  be  imitated  has  led 
to  a  provision  that  a  comparison  of  hands  alone,  unsupported  by  other 
circumstances,  shall  not  of  itself  be  sufficient  evidence,  where  the  hand- 
writing is  denied.  The  provisions  of  this  chapter  are  but  a  develop- 
ment of  the  one  which  has  been  already  sufficiently  commented  upon, 
that  which  requires  the  oath  of  the  party  in  support  of  his  defence. 
Few  men  would  have  the  hardihood  to  deny  their  own  signatures,  even 
without  oath,  if  it  were  not  for  the  pernicious  practice  of  throwing  the 
defence  of  a  suit  upon  the  attorney,  who,  in  the  name  of  his  client, 
every  day,  without  any  blame  attaching  either  to  his  client  or  himself, 
asserts  what  they  both  know  to  be  false,  by  denying  a  signature  which, 
in  a  few  weeks,  is  proved  or  confessed  to  be  true.  According  to  the 
plan  proposed,  the  party  must  speak  for  himself;  the  instrument  is 
offered  for  his  inspection,  and  he  must,  first  by  his  answer,  and  after- 
wards, if  required,  openly,  in  the  presence  of  his  fellow-citizens  and 
the  magistracy  of  his  country,  on  his  own  responsibility,  make  his 
declaration  of  the  truth.  Thus,  independently  of  the  gain,  on  the  score 
of  public  justice,  the  members  of  an  honourable  profession  are  no  longer 
made  the  instruments  of  falsehood  ;  and,  if  any  is  asserted,  the  risk,  the 
shame  and  the  odium,  is  incurred  and  borne  by  those  to  whom  it  pro- 
perly belongs. 

Another  and  a  very  full  chapter  relates  to  copies  of  written  instru- 
ments as  evidence. 

It  is  enacted  that  attested  copies  of  authentic  acts  are  exceptions  to 
the  rule,  that  transcripts  are  not  to  be  received  when  the  original  can 
be  procured.  In  favour  of  copies  of  other  acts  no  such  exception 
exists.  The  different  kinds  of  copies  invested  with  different  degrees 
of  authenticity,  are  pointed  out,  and  a  mode  is  provided  for  giving  a 
certain  degree  of  authenticity  to  acts  under  private  signature,  which  is 
new  and  requires  particular  attention. 

Whenever  the  holder  of  an  act,  under  private  signature,  fears  the 
loss  of  the  instrument,  or  of  the  evidence  by  which  he  expects  to  sub- 
stantiate it,  he  may,  at  his  own  expense,  present  a  petition  to  a  court 
of  competent  jurisdiction,  praying  that  the  party  who  has  signed  the 
instrument  may  be  summoned  to  appear  at  the  office  of  some  designated 
notary,  to  witness  the  registry  of  the  act. 

If  the  party  summoned  answer  that  he  denies  the  signature,  its  au- 
thenticity is  tried  as  in  common  cases,  and  if  found  for  the  plaintiff, 
the  registry  of  the  act  shall  be  decreed  with  costs.  If  he  confesses  the 
signature,  or  do  not  answer,  the  notary,  on  seeing  a  certified  copy  of 
the  record,  shall  proceed  to  register  the  act  by  making  a  full  copy  on 
his  records.  Copies,  thus  authenticated,  are  full  proof  of  the  signa- 
ture, but  do  not  entitle  the  party  to  prompt  execution,  as  is  the  case 
with  authentic  acts.  They  are  called  copies  in  form.,  but  cannot  be 
produced  without  proof  that  the  original  is  lost  or  destroyed.  On  proof 


THE  CODE  OF  EVIDENCE.  2°7 

of  loss  only,  security  is  required  against  the  appearance  of  the  instru- 
ment in  the  hands  of  a  bona  fide  holder,  after  public  notice.  When 
destruction  is  proved,  no  such  security  is  required. 

Acts  under  private  signature  may  also  be  authenticated  and  registered 
by  the  consent  of  the  parties,  testified  by  their  signatures  in  the  pre- 
sence of  the  notary,  so  as  to  produce  the  effect  of  copies  in  form. 

Even  without  any  judicial  order,  and  without  the  consent  of  the 
party  signing  an  act  under  private  signature,  it  may  be  transcribed  in 
his  register  by  the  notary  at  the  request  of  the  holder.  This  is  called 
an  informal  copy,  and  can  serve  only  the  following  purposes :  to 
become  the  foundation  for  a  prescriptive  right  from  the  time  of  the 
registry;  when  the  original  is  produced,  but  the  time  of  its  execution 
is  in  dispute,  to  verify  that  execution  up  to  the  time  of  its  registry  ; 
after  ten  years'  uninterrupted  enjoyment  under  it,  it  has  the  force  of  an 
authentic  act ;  and,  connected  with  other  circumstances,  it  forms  pre- 
sumptive proof  of  the  execution  of  the  original  and  of  its  contents. 

The  originals  of  acts  under  private  signature  may  also  be  placed  in 
deposit  on  the  records  of  the  notary,  preceded  by  the  declaration  of 
the  depositor,  signed  by  the  parties  making  the  same,  and  attested  by 
the  notary.  Attested  copies  of  such  act  are  authentic  evidence  against 
all  who  have  signed  the  same. 

A  concluding  section  of  this  chapter  directs  the  mode  in  which  acts 
under  private  signature  should  be  signed  and  attested  ;  declares  that 
they  may  be  made  the  evidence  of  all  kinds  of  obligations  or  declara- 
tions, except  those  that  are  specially  by  law  declared  to  be  made  by 
authentic  acts;  and  contains  provisions  to  guard  against  fraud  and  impo- 
sition upon  the  illiterate. 

2.  Writings,  even  not  signed  by  the  parties,  may  furnish  evidence  of 
the  presumptive  kind.  This  species  of  evidence  is  of  two  descriptions. 
Those  which  appear  to  have  been  prepared  for  signature,  but,  not  having 
received  it,  are  imperfect;  such  as  wills,  contracts,  declarations  of  trust, 
&c.,  and  to  those  which  from  their  nature  were  not  intended  to  be 
signed;  of  this  kind  are  entries  in  books,  family  records  of  births,  &c. 

Writings  of  the  first  kind  are  never  admitted  as  direct  proof  of  the 
disposition  of  which  they  would  have  been  the  evidence,  had  they  been 
perfected.  They  may  be  presumptive  evidence — first,  of  the  intent  to 
make  the  contract  or  disposition,  when  such  intent  is  material  to  the 
issue;  and  secondly,  of  the  truth  of  any  enunciation  in  the  writing,  or 
of  the  knowledge  which  the  party  had  of  such  fact.  But  in  no  case 
can  such  writing  be  admitted  at  all,  unless  it  be  in  the  hand-writing  of 
the  party  against  whom  it  is  offered,  or  proved  to  have  been  made  by 
his  direction,  or  approved  by  him  after  it  was  made. 

Writings  of  the  second  kind,  when  made  by  the  party,  by  his  direc- 
tion, or  approved  by  him,  may  also  be  admitted  as  presumptive  proof 
of  that  which  they  enounce.  But  in  bot>h  cases,  the  party  may  be  ad- 
mitted to  state,  on  oath,  the  circumstances  under  which  such  writings 
were  made,  and  to  explain  their  intent. 

All  the  kinds  of  scriptory  evidence  we  have  been  considering,  are 
such  as  were  made  by  the  parties  against  whom  they  are  offered, 
or  by  their  direction.  Of  another  description  are  those  writings,  in- 
cluding printed  papers  and  engravings,  which  are  made  by  others. 
These  are : 
2N 


298  INTRODUCTORY  REPORT  TO 

Historical  works  to  elucidate  any  public  fact  that  may  become  material 
in  a  litigated  case. 

Books  of  art  or  science — when  any  thing  appertaining  to  the  branch 
of  learning  of  which  they  treat  is  in  dispute. 

Maps  or  plans,  to  elucidate  questions  of  locality;  but  these  are  sub- 
ject to  restrictions  contained  in  the  code. 

Accounts  stated,  or  calculations  made  by  persons  who  prove  them  to 
be  correct. 

Nautical  or  other  almanacs,  whenever  material  to  the  issue. 
This  finishes  a  review  of  the  important  title  of  Scriptory  Evidence: 
a  source  from  which  the  most  contradictory  effects  have  flowed.  If  on 
the  one  hand  it  gives  the  means  of  precision  and  permanence  to  engage- 
ments, those  very  qualities  make  it,  in  many  instances,  the  instrument 
of  fraud  and  imposition  upon  ignorance.  Its  quality  of  precision  makes 
verbal  explanation  in  most  cases  dangerous,  and  the  rectification  of  error 
inconsistent  with  rules  which  it  would  be  improper,  in  general,  to  violate; 
and  its  permanence  makes  it  outlast  the  evidence,  which  might  serve  to 
show  the  causes  why  it  ought  to  be  declared  invalid  even  in  the  few  cases 
where  such  evidence  would  have  been  permitted.  Its  superior  rank  in 
the  scale  of  evidence,  too,  makes  it  a  stronger  temptation  to  fraud,  in 
the  shape  of  forgery.  These  and  other  disadvantages  should  be  con- 
sidered, and,  as  far  as  possible,  counteracted  by  legislation.  No  means 
of  effecting  this  desirable  end  appear  to  promise  such  good  results  as  a 
wise  system  of  registration;  and  of  all  those  systems,  none  appear  equal 
to  that  which  is  in  force  in  this  state.  The  provisions  contained  in  the 
proposed  code  have  been  framed  for  the  purpose  of  bringing  it  nearer  to 
that  perfection  to  which,  by  adopting  the  plan  for  gradual  improvement 
pointed  out  in  the  beginning  of  this  report,  it  is  devoutly  hoped  it  may 
answer. 

In  no  other  state  is  any  provision  made  to  counteract  a  fraud,  which 
has  been  practised,  and  will  be  practised,  in  spke  of  all  general  laws 
against  that  offence.  This  is  the  process:  a  deed  is  forged,  or  fraudu- 
lently altered;  it  is  proved  by  a  perjured,  mistaken,  or  ignorant  witness, 
before  a  magistrate — in  some  states,  even  before  a  magistrate  residing 
under  another  jurisdiction,  and  therefore  not  amenable  to  its  laws;  this 
magistrate  allows  it  to  be  recorded;  it  is  transcribed  on  the  record,  and 
returned  to  the  party,  and  by  him  destroyed.  The  copy  from  the  re- 
cord is  then  evidence  ;  and  the  means  of  detection,  by  showing  the 
signatures  to  be  forged  from  a  comparison  of  hands  and  other  circum- 
stances, is  lost  In  our  system,  which  ought  to  be  examined,  and  deserves 
to  be  imitated  by  the  other  states,  no  such  frauds  can  be  committed. 
Publicity  is  secured  in  all  cases  in  which  the  general  welfare  requires 
it;  secrecy  provided  for,  when  the  public  interest  will  not  suffer;  per- 
manence and  security  given  to  the  originals  of  all  important  papers;  and 
imposition  upon  the  ignorant  and  illiterate  prevented  by  the  scrutiniz- 
ing supervision  of  a  public  and  responsible  officer. 

A  short  title  of  one  chapter  contains  all  that  seemed  necessary  relat- 
ing to  substantive  evidence. 

When  we  reflect  that  from  the  very  definition  of  this  kind  of  evi- 
dence it  must  always  be  supported  by  testimony,  to  show  the  connexion 
of  the  object  produced  with  the  circumstances  of  the  case;  it  will  be 
evident,  that  it  must  be  governed  by  the  rules  laid  down  in  relation  to 


THE  CODE  OP  EVIDENCE.  299 

that  kind  of  evidence  which  serves  to  introduce  it.  A  few  illustrations 
and  examples  are  given  in  the  code  to  give  a  full  understanding  of  the 
nature  of  this  evidence.  The  mark  on  a  tree  coinciding  with  that  stated 
by  scriptory  or  testimonial  evidence,  in  cases  of  disputed  boundary,  is 
substantive  evidence  of  a  land-mark.  The  number  of  concentric  circles 
in  the  wood  that  has  grown  over  the  mark,  is  substantive  evidence  of 
the  number  of  years  that  have  elapsed  since  it  was  made.  Yet  the  mark 
itself  is  no  evidence,  unless  supported  by  proof  of  the  circumstances  under 
which  it  was  made. 

Having  considered  all  the  divisions  of  evidence  in  relation  to  the 
source  from  which  it  proceeds,  we  come  now  to  consider  it  in  relation 
to  the  degree  of  weight  it  is  calculated  to  have  in  producing  that  con- 
viction in  the  mind,  which  is  the  object  of  all  judicial  evidence.  The 
divisions  in  this  view,  and  in  the  ascending  scale,  are,  as  we  have  seen, 
presumptive,  direct  and  conclusive.  But  for  one  consideration  this 
division  would  not  be  necessary,  except  for  developing  the  nature  of 
evidence,  not  for  directing  the  mode  of  its  admission;  because,  convic- 
tion of  the  truth,  being  the  result  of  an  intellectual  operation,  the  degree 
in  which  evidence  of  any  kind  is  to  operate  can  never  be  prescribed; 
and  it  would,  therefore,  have  been  proper  only  in  a  theoretic  view  to 
have  indicated  these  divisions,  but  for  certain  positive  enactments  which, 
forming  part  of  our  civil  code,  it  does  not  come  within  the  intent  of  the 
legislature  to  alter  or  repeal  by  this  code.  These  enactments  declare 
what  evidence;  in  particular  cases,  shall  be  considered  as  presumptive, 
and  what  others  conclusive  testimony.  This  can,  in  effect,  be  no  more 
than  directing  what  judgment  shall  be  given  when  particular  testimony 
is  adduced;  because,  as  has  been  said,  no  law  can  control  the  operations 
of  the  mind.  Yet  as  the  effect  of  the  different  descriptions  of  evidence 
is  directed,  it  became  necessary,  in  a  code  on  that  subject,  to  give  these 
divisions  a  place.  In  another  point  of  view,  also,  it  would  seem  to  be 
proper.  The  authority  of  nature,  as  well  as  that  of  positive  law,  has 
decreed  that  on  a  well  organized  mind,  all  events  happening  according  to 
her  invariable  course,  should  be  considered  as  true;  and  allegations  of 
fact,  contrary  to  such  course,  as  false;  hence  a  second  source  to  which 
we  can  refer  conclusive,  and  in  some  instances  presumptive,  evidence. 
These  considerations  have  induced  the  insertion  of  chapters  correspond- 
ing to  the  three  degrees  of  evidence  which  have  been  enumerated. 

1.  The  first  of  these,  presumptive  evidence,  is  of  two  kinds,  which  can- 
not be  brought  under  the  same  general  definition  :  the  one,  simple  pre- 
sumptions, arising  from  the  operation  of  the  mind  of  the  judge  drawing 
from  the  existence  of  one  fact,  which  has  been  proved,  the  inference 
that  another,  which  has  not  been  proved,  exists  also  ;  the  other,  legal 
presumptions,  are  those  which  are  made  by  the  law  itself,  and  which 
the  judge  is  forced  to  adopt,  whatever  may  be  his  own  conclusions 
from  the  facts.  Illustrations  of  the  former  are  given  in  presumption, 
drawn  from  the  structure  of  the  human  mind  ;  such  as  that  a  man  of 
good  character  will  not  do  an  unworthy  act — that  a  mother  will  not 
abandon  her  child — and,  from  the  common  course  of  business,  that  if 
the  obligation  be  delivered  to  the  debtor,  the  debt  has  been  paid.  As 
examples  of  legal  presumptions,  are  given  the  following,  which  are 
directed  by  law  :  that  he  who  has  possessed  real  estate  for  a  year,  is 
the  owner  ;  and  that  when  no  time  is  expressed  for  the  continuance 


300  INTRODUCTORY  REPORT  TO 

of  a  predial  estate,  it  shall  be  deemed  to  have  been  intended  for  a  year- 
The  effect  of  these  presumptions  is  directed  to  be,  that  the  fact  pre. 
sumed  shall  be  considered  as  proved,  unless  the  contrary  be  shown  by 
other  evidence. 

Presumptions  can  only  be  raised  by  legal  evidence  ;  therefore,  noth- 
ing can  be  the  legal  foundation  for  a  presumption  but  that  which  can  be 
legally  given  in  evidence  ;  and  it  is  further  provided,  that  simple 
presumptions  must  be  founded,  first,  on  the  establishment  of  some  fact 
by  legal  testimony  ;  secondly,  by  such  deduction  from  that  fact  as  is 
warranted  by  the  usual  propensities  or  passions  of  men — by  the  parti- 
cular habits  or  passions  of  the  individual  whose  act  is  in  question — by 
the  usual  course  of  business,  or  by  the  ordinary  operations  of  nature. 

2.  Of  direct  evidence,  little  more  need  be  said  than  to  give  its  defini- 
tion, which  is,  that  which,  if  true,  conclusively  establishes  the  fact  in 
question.     It,  therefore,  can  give  rise  to  one  inquiry  only — whether 
the  fact  stated  be  true  ;  and  as  this  inquiry  must  be  pursued  in  the  or- 
dinary form,  the  rules  for  conducting  it  must  be  sought  under  other 
heads. 

3.  Conclusive  evidence  forms  a  more  comprehensive  title.     Every 
species  of  proof  may  produce  conviction  in  the  mind  of  the  judge,  and 
any  evidence  producing  that  conviction  would,  in  one  sense  of  the 
word,  be  deemed  conclusive.     But  in  this  code,  that  term  is  applied 
exclusively  to  that  which  is  declared  to  be  such  by  it,  or  by  other  pro- 
visions of  law  which  it  does  not  alter  or  repeal. 

It  may,  perhaps,  seem  inconsistent  with  the  principles  on  which  this 
code  is  founded,  for  the  legislature  so  far  to  interfere  with  judicial 
discretion  in  judging  of  the  force  of  evidence  as  to  declare,  that  any 
proof  shall  be  considered  as  conclusive  of  any  litigated  fact.  In  many 
cases,  as  has  been  observed,  the  interference  is  buUnominal ;  and  the 
legislative  phraseology  would  be  more  correct,  if,  instead  of  declaring 
that  such  a  fact,  or  such  evidence,  shall  be  presumptive  proof  of  such 
another  designated  fact,  it  were  to  direct,  in  cases  of  legal  presumptions, 
that  when  such  a  fact  should  appear  in  evidence  to  the  judge,  then  he 
should  give  judgment  in  the  manner  directed  by  the  law,  unless  coun- 
ter evidence  were  produced  by  the  opposite  party  ;  and  in  case  of 
conclusive  evidence,  that  whenever  the  designated  fact  should  be  proved, 
he  should  give  judgment  in  the  manner  designated,  without  hearing 
other  evidence.  But  in  whatever  manner  the  legislative  will  is  ex- 
pressed— whether  in  the  incorrect  mode  of  directing  the  judge  what 
to  believe,  or  in  the  more  proper  manner  of  directing  him  what  to  de- 
cide— is  not  so  material  as  to  inquire  for  the  reasons  why  any  such 
directions  should  be  given  in  any  form.  Uniformity  in  judicial  deci- 
sions, it  will  be  allowed,  is  a  very  desirable  object  in  the  exercise  of 
jurisprudence.  By  this  is  meant,  the  same  deductions  from  the  same 
facts,  applied  to  similar  circumstances.  The  cases  in  which  this  can  be 
procured  by  legislative  interference,  without  injustice,  are  few;  and  the 
probability  of  the  reverse — that  is,  of  different  decisions,  although  the 
proof  and  the  circumstances  may  be  the  same — is  very  great  ;  because, 
the  minds  of  men  being  differently  organized,  there  are  not  many 
things  in  which  all  would  agree.  If  this  be  the  case,  when  not  only  the 
evidence  but  the  circumstances  of  the  case  on  which  it  is  to  operate  are 
the  same,  how  much  more  is  it  to  be  expected  where  these  circum- 


THE  CODE  OF  EVIDENCE.  301 

stances  exhibit  shades  of  difference  ?  Yet  there  are  cases  in  which,  at 
the  risk  of  producing  particular  inconvenience,  the  general  welfare 
requires  that  this  uniformity  should  be  preserved  ;  which  can  only  be 
done  by  directing  that,  whatever  may  be  the  opinion  of  the  judge,  his 
decree  shall  be  rendered  in  conformity  with  the  directions  of  the  statute, 
whenever  the  evidence  it,  for  public  purposes,  considers  as  conclusive, 
shall  be  produced.  Without  multiplying  examples,  that  of  the 
authentic  act  may  sufficiently  illustrate  what  has  been  said  on  this  sub- 
ject. The  authentic  act,  as  we  have  seen,  is  conclusive  evidence  of 
the  truth  of  all  that  is  certified  by  it  to  have  been  done  in  the  presence 
of  the  public  officer,  before  whom  it  has  been  passed.  Different  judges, 
from  different  views  of  the  subject,  might  not  receive  an  equal  convic- 
tion of  the  truth  of  what  is  declared  by  it.  To  such  it  would  not  be 
conclusive  evidence.  There  would,  then,  be  no  uniformity  of  deci- 
sion on  the  validity  of  such  instruments;  but  public  convenience  and 
utility  require,  that  the  holder  of  such  an  act  should  rely  upon  the 
faith  of  the  officer's  certificate  ;  therefore,  the  law  wisely  declares,  that 
it  shall  be  conclusive  testimony,  although,  in  some  instances,  careless- 
ness or  ignorance  may  have  consented  to  its  execution,  when  it  did  not 
contain  the  stipulations  that  were  intended.  In  this,  however,  as  in  all 
other  cases  where  evidence  is  declared  to  be  conclusive,  provision  is 
made  for  annulling  the  act  whenever  fraud,  error  or  force  has  inter- 
vened. So  the  record  of  a  judgment  is  conclusive  evidence  that  the 
party  in  whose  favour  it  was  rendered,  was  entitled  to  the  relief  which 
it  purports  to  give.  Yet  the  judgment,  in  some  particular  case,  may 
have  been  unjust,  and  the  judge,  before  whom  it  is  produced  as  evi- 
dence, may  be  convinced  that  it  was  so.  But  the  individual  interest, 
in  this  case,  must  be  sacrificed  to  the  stability  of  the  general  rule,  it 
being  more  expedient  that  one  unjust  judgment  should  be  carried  into 
execution,  than  that  all  judgments  should  be  open  to  contestation, 
whenever  they  were  produced  as  evidence  of  the  claims  which  they 
have  sanctioned. 

This  code  only  refers  for  illustration  to  some  enactments  belonging 
to  the  Civil  Code  and  other  general  laws,  by  which  certain  evidence  is 
declared  conclusive.  It  does  not  detail  them,  but  it  enforces  their  pro- 
visions ;  shows  that  the  objects  they  are  intended  to  attain  are  to 
diminish  litigation  and  lessen  the  temptations  to  perjury  ;  and  divides 
them  into  positive  enactments  for  the  purposes  just  mentioned,  and  those 
which  are  declaratory  of  the  usual  course  of  nature.  Examples  of  the 
first  are  offered  in  the  authority  given  to  judgments,  to  authentic  acts, 
and  to  judicial  confessions  ;  and  of  the  last,  in  the  provision  of  our 
existing  law,  that  the  birth  of  a  child,  more  than  three  hundred  days 
after  the  death  of  the  husband,  is  conclusive  proof  that  thechild  is  not  his. 

In  the  enumeration  of  evidence,  declared  to  be  conclusive,  the  item 
of  judicial  decrees  is  the  most  important,  both  for  the  frequency  of  its 
occurrence,  and  the  difficult  questions  to  which  it  gives  rise.  A  whole 
chapter  is  devoted  to  this  subject.  It  contains  few  provisions  entirely 
new;  but,  it  is  believed,  that  the  several  sections,  directing  what  judg- 
ments are  valid  as  res  judicatae — which  cannot  have  that  effect,  and 
against  whom  they  may  be  given  in  evidence,  will  obviate  many  of  the 
difficulties  that  have  hitherto  attended  this  subject;  and  that,  if  adopted, 
a  ready  solution  will  be  found  to  most  of  the  questions  to  which  it  has 
given  rise. 


302  INTRODUCTORY  REPORT  TO 

Another  species  of  evidence  which,  under  certain  circumstances,  is 
conclusive,  arises  from  the  confession  of  the  party.  Confession,  in  re- 
lation to  the  manner  in  which  it  is  made,  is  either  judicial  or  extra-judi- 
cial. The  former,  being  that  which  is  made  in  some  writing  forming 
a  part  of  the  judicial  proceedings  in  a  cause;  or  when  it  is  made  before 
a  person  authorized  by  law  to  receive  the  same,  and  reduced  to  writing 
in  the  manner  prescribed  by  law.  The  latter,  are  confessions  made  in 
any  other  manner. 

In  relation  to  the  matter,  confessions  are  either  full,  or  partial  only. 
Full  confession,  is  that  which  acknowledges  the  fact  alleged  with  all 
its  material  circumstances,  so  as  to  leave  nothing  to  be  supplied  by  other 
evidence.  Partial  confession,  is  that  which  acknowledges  some  circum- 
stance from  which  an  inference  may  be  drawn,  so  as  to  make  it  pre- 
sumptive evidence. 

In  civil  cases,  where  every  proceeding  made  by  the  parties  is  in 
writing,  and  after  full  deliberation,  a  judicial  confession  is  declared  to 
be  conclusive  evidence,  if  not  recalled,  and  after  a  reasonable  term  for 
deliberation  shown  to  the  satisfaction  of  the  judge  to  be  erroneous;  but 
restrictions  are  added,  to  prevent  vexation  by  making  and  capriciously 
retracting  confessions. 

In  criminal  cases,  however,  no  confession,  whether  judicial  or  extra- 
judicial,  is  conclusive  testimony  of  guilt  The  reason  of  this  difference 
is  evident.  Insanity,  promises,  fear,  hope  of  liberty  or  pardon,  may 
produce  a  confession  contrary  to  the  fact;  and  therefore,  although  the 
confession  is  strong  evidence,  it  is  always  open  to  be  rebutted  by  any 
other  that  would  lessen  its  force. 

Even  the  answer  of  "guilty"  to  the  arraignment  is  not  a  sufficient 
ground  for  passing  sentence,  until  the  necessary  inquiries  as  to  the 
sanity  of  mind  in  the  prisoner  and  the  existence  of  the  other  causes, 
have  been  made.  When  we  reflect  on  the  numerous  instances  in  which 
men  have  confessed  themselves  guilty,  not  only  of  crimes  which  they 
had  not  committed,  but  which  were  impossible  to  be  committed  by  any 
one,  the  necessity  of  these  precautions  will  be  admitted.  The  inexplica- 
ble state  of  mind  which  produced,  in  so  many  instances,  confessions  of 
sorcery  and  witchcraft,  may  take  place  in  other  cases,  although  those 
delusions  are  over. 

By  the  declaration,  that  no  evidence  should  be  deemed  conclusive 
but  that  which  is  declared  to  be  such  by  law,  that  which  operates  as 
such  by  our  present  law  under  the  title  of  estoppel,  is  of  course  abolished; 
but  for  greater  certainty,  that  effect  is  declared  by  a  special  provision. 

A  concluding  article  contains  the  necessary  notice,  that  nothing  in  the 
code  chall  be  construed  so  as  to  dispense  with  the  proof  required  by  the 
Civil  Code  or  other  statutes,  to  give  effect  to  certain  contracts  or  testa- 
mentary dispositions,  or  to  enforce  the  registry  or  recording  of  acts,  or 
prove  legitimacy,  filiation  or  civil  condition.  A  detail  of  the  evidence, 
required  in  these  and  similar  cases,  did  not  form  a  part  of  this  code,  be- 
cause they  could  not  have  been  inserted  without  repeating  the  provisions 
of  the  laws  of  which  they  form  a  part,  which  would  have  intermixed 
two  distinct  branches  of  legislation,  required  by  the  policy  of  our  law 
to  be  kept  separate. 

Before  I  close  the  report,  it  may  be  necessary  to  account  for  an 
omission  in  the  work — :that  of  not  designating  the  evidence  required  or 
permitted  in  each  separate  species  of  civil  action  and  criminal  procedure. 


THE  CODE  OF  EVIDENCE.  303 

It  is  easy,  however,  to  show  that  this  would  have  been  unnecessary  and 
injurious  to  the  simplicity  of  the  plan  that  has  been  adopted. 

By  our  excellent  system  of  civil  law,  a  plaintiff  can  succeed  only  by 
stating  such  facts  as  entitle  him  to  relief  according  to  law;  and  by  prov- 
ing those  facts.  In  these  two  operations  he  must  be  directed  by  two 
different  codes.  The  Civil  Code  informs  him  what  circumstances  give 
him  the  right  to  recover;  and  it  is  the  province  of  the  Code  of  Evidence 
to  direct  in  what  manner  the  proof  shall  be  made;  not  of  the  facts  in  that 
suit  only,  but  of  all  facts  in  any  action.  To  direct  what  facts  are 
necessary  to  be  proved,  in  order  to  be  restored  to  a  possession  which  is 
wrongfully  withheld,  to  enforce  the  payment  of  a  debt,  or  obtain 
damages  for  a  wrong — could  only  be  done  by  repeating  the  substance 
of  the  Civil  Code,  and  would,  therefore,  be  misplaced  in  the  law  of  evi- 
dence, which  ought  to  contain  only  general  rules,  applicable  to  the  differ- 
ent species  of  evidence,  not  to  particular  actions  in  which  that  evidence 
may  become  proper  or  necessary.  It  is  the  same  as  regards  the  defence: 
the  Civil  Code  directs  what  circumstances  will  justify  an  act  that  would 
otherwise  be  wrongful:  and  the  Code  of  Evidence  tells  us,  by  the  appli- 
cation of  its  general  rules,  how  those  circumstances  are  to  be  proved. 
So  in  criminal  prosecutions  ;  the  acts  or  omissions  which  constitute  an 
offence,  are  designated  in  the  Code  of  Crimes  and  Punishment,  and 
consequently  we  need  no  other  guide  to  discover  what  is  necessary  to 
be  proved  in  any  particular  prosecution.  Why,  then,  should  it  be  re- 
peated in  the  Code  of  Evidence  ? 

A  contradictory  practice  on  this  point,  together  with  the  necessity  of 
arranging  and  weighing  the  authority  of  the  contradictory  or  explana- 
tory decisions,  in  every  controverted  case,  has  rendered  the  English 
law  of  evidence  so  extremely  Voluminous  and  contributed  to  increase 
its  uncertainty. 


INTRODUCTORY  REPORT 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 


IN  offering  to  the  legislature  a  system  of  penal  law,  the  principal  sanc- 
tion of  which  is  imprisonment,  it  is  scarcely  necessary  to  remark,  that  its 
whole  efficacy  must  depend  on  the  manner  in  which  confinement  is  to 
be  inflicted  as  a  punishment,  or  used  as  a  means  of  detention;  in  other 
words,  on  the  wisdom  of  the  Code  of  Prison  Discipline.  In  preparing 
the  plan  now  submitted,  I  kept  in  view,  as  the  great  objects  to  be  at- 
tained— restraint,  example  and  reformation.  To  discover  what  species 
of  seclusion  would  best  produce  these  ends,  rigidly  to  direct  every  pri- 
vation necessary  to  attain  them,  but  to  inflict  no  evil  greater  than  was 
required  to  produce  these  consequences,  would  seem  at  first  view  a 
comparatively  easy  task;  but  the  selection  of  proper  means,  and  the  de- 
tails required  for  their  application,  presented  difficulties  in  the  execution 
only  to  be  overcome  by  the  closest  attention  to  facts,  and  the  most 
cautious  calculation  of  consequences.  A  statement  of  these  facts,  and 
an  exposition  of  the  consequences  drawn  from  them,  will  enable  the 
House  better  to  understand  and  decide  on  the  plan  which  I  have  the 
honour  to  propose. 

At  a  time  when  the  penal  law  of  Great  Britain,  still  liable  to  the  re- 
proach of  unnecessary  severity  in  its  enactments,  and  barbarity  in  its 
executions,   had  received  none  of  those  improvements  which  the  true 
principles  of  jurisprudence  have  since  produced,  the  benevolent  heart 
and  enlightened  mind  of  the  legislator  of  Pennsylvania,  suggested  the 
substitution  of  solitary  imprisonment  and  labour  for  the  punishment  of 
death.     The  beneficial  effects  of  this  change  were  felt  until  they  were 
counteracted  by  the  intolerant  and  sanguinary  system  of  the  common 
law  of  England,  enforced  by  the  paramount   authority  of  the  mother 
country.     But  no  sooner  did  independence  confer  the  power  of  consult- 
ing the  public  good,  than  the  people  of  Pennsylvania  made  the  refor- 
mation of  the  penal  code  a  constitutional  obligation  on  their  representa- 
tives; and,  amidst  the  confusion  produced  by  foreign  invasion  and  civil 
discord  in  the  Revolutionary  war,  a  society  worthy  of  the   city   of 
"  brotherly  love"  was  formed  for  the  relief  of  distressed  prisoners. 
With  persevering  benevolence,  they  not  only  relieved  the  victims  of 
the  inhuman  system  that  then  prevailed,  but,  by  unceasing  appeals  to 
true  principles,  induced  the  legislature  of  that  state  to  begin  the  great 
reform.     In  all  but  two  or  three  cases,  the  punishment  of  death  was 
2  0 


306  INTRODUCTORY  REPORT  TO 

abolished  :  labour  was  substituted  for  loss  oflife  and  stripes;  but,  con- 
trary to  the  opinion  early  expressed  by  the  society  in  favour  of  solitary 
labour,  that  on  the  public  works  was  adopted.  The  error  was  a  radical 
one:  debasement,  corruption,  and  an  immediate  repetition  of  crime, 
were  the  consequences;  and  the  failure  of  this  experiment  with  any  but  a 
wise  and  reflecting  people,  might  have  been  fatal  to  the  system.  But, 
happily  for  Pennsylvania,  and  perhaps  for  the  world,  she  had  enlighten- 
ed men  to  frame  her  penal  laws;  and  happier  still,  she  had  a  class  of 
citizens  admirably  calculated  to  execute  them  with  the  zeal  of  enthu- 
siasm. The  founder  of  that  state,  and  his  first  associates,  belonged  to  a 
sect  which  fitted  them,  by  its  principles,  and  by  the  habits  and  pursuits 
which  it  created  and  prescribed,  to  be  the  agents  of  a  reform  in  jurispru- 
dence similar  to  that  which  they  adopted,  and  perhaps,  carried  to  ex- 
cess, in  religion.  Their  descendants,  with  less  of  that  enthusiasm  which, 
in  their  ancestors,  was  exalted  by  persecution,  had  all  the  active  bene- 
volence and  Christian  charity  necessary  to  prompt,  and  the  perseverance 
and  unwearied  industry  to  support  their  exertions.  Abstracted  by  their 
tenets  from  the  pleasures  which  occupy  so  large  a  portion  of  life  among 
other  sects  ;  equally  excluded  from  other  pursuits  in  which  so  many 
find  occupation  ;  freed  from  the  vexations  of  mutual  litigation,  by  sub- 
mitting every  difference  to  the  umpirage  of  the  elders,  and  from  the 
tyranny  of  fashion  by  an  independent  contempt  for  its  rules;  the  modern 
quakers  devote  all  that  time  which  others  waste  in  dissipation,  or  em- 
ploy in  intriguing  for  public  employment,  to  the  direction  of  charitable 
institutions,  and  that  surplus  wealth  which  others  dissipate  in  frivolous  pur- 
suits, to  the  cause  of  humanity.  In  every  society  for  promoting  educa- 
tion, for  instructing  or  supporting  the  poor,  for  relieving  the  distresses 
of  prisoners,  for  suppressing  vice  and  immorality,  they  are  active  and 
zealous  members;  and  they  indemnify  themselves  for  the  loss  of  the 
honours  and  pleasures  of  the  world  by  the  highest  of  all  honours,  the 
purest  of  all  pleasures — that  of  doing  good. 

To  these  men,  and  others  who  participated  in  their  principles,  was 
committed  the  task  of  uniting  reformation  and  punishment,  when 
secluded  was  substituted  for  the  public  labour  to  which  the  convicts  had 
before  been  exposed.  The  most  encouraging  results  justified  the  change 
in  the  law,  and  the  selection  of  persons  to  whom  its  execution  was 
committed;  and  from  the  year  1790,  when  it  took  place,  until  1793, 
we  have  the  official  attestation  of  one  of  the  inspectors(rt),  that,  out  of 
two  hundred  convicts  who  had  been  pardoned,  only  four  were  returned 
on  a  second  conviction;  that  only  two  cases  of  burglary,  and  not  one  of 
privately  stealing  from  the  person,  had  occurred;  that  the  streets  and 
roads  were  freed  from  robbers,  and  that  in  all  the  prisons  for  the 
populous  city  and  county  of  Philadelphia,  immediately  before  the 
sitting  of  the  court,  only  four  persons  were  in  custody  for  trial. 
This  last  is  a  striking  fact.  The  city  and  county  of  Philadelphia,  at  that 
time,  contained  upwards  of  sixty  thousand  inhabitants,  and,  prior  to  that 
time,  more  than  thirty  had  been  condemned  at  a  session,  a  number 
which  supposes  at  least  fifty  commitments  ;  so  that,  in  the  short  space 
of  two  years,  the  effect  of  the  system  was  the  entire  suppression  of  some 

(a)  A  member  of  the  Society  of  Friends,  who  has  rendered  the  name  of  Lowndes  as 
celebrated  for  active,  enlightened  benevolence,  as  a  late  lamented  statesman  has  since  done 
for  eloquence,  patriotism  and  integrity. 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  307 

crimes,  and  the  reduction  of  others  in  the  proportion  of  ten  to  one,  in 
the  place  where  the  example  might  be  supposed  to  have  had  the  greatest 
effect.  The  operation  of  the  system  in  the  whole  of  the  state,  was 
nearly  as  encouraging.  Although  its  population  was  increasing  in  a 
very  rapid  ratio,  yet  conviction  decreased  from  one  hundred  and  twenty- 
five,  in  the  year  1789,  to  the  respective  numbers  of  one  hundred  and 
nine,  seventy,  sixty-three,  forty-five(a),  in  the  four  succeeding  years. 
Thus  we  find  that,  although  the  population  of  the  state  was  increasing 
in  a  ratio  of  four  and  a  half  per  cent  a  year,  offences(6)  had  decreased 
in  the  proportion  of  forty-five  to  one  hundred  and  twenty-five,  or  nearly 
two-thirds  less;  and  in  the  last  year  I  have  mentioned,  there  were  no 
convictions  for  one  half  of  the  crimes  that  had  figured  on  the  preceding 
calendars.  So  remarkable  a  diminution  of  crime  in  a  regular  decreasing 
series,  is  a  fact  worthy  our  most  profound  attention,  when  we  are  con- 
sidering the  effects  of  this  species  of  punishment.  Nothing  can  develop 
the  true  principles  of  legislation  on  this  subject  more  clearly  than  the 
history  of  the  reform  in  Pennsylvania  in  all  its  stages.  In  1786,  we 
find  that  the  various  system  of  labour  in  the  public  works  was  estab- 
lished. Under  it,  in  the  three  years  of  its  operation,  and  the  first  year 
after  its  repeal,  but  before  the  effects  of  the  system  could  cease,  the 
average  number  of  convictions  in  each  year  was  one  hundred  and  nine; 
in  1791  it  decreased  under  the  new  system  to  seventy-six;  in  1792  to 
sixty-three;  and  in  1793  to  forty-five:  all  this  while  the  population  of 
the  state  and,  what  is  more  worthy  to  be  noted,  of  the  city,  was  rapidly 
increasing.  This  was  the  lowest  point  of  depression:  from  that  time 
the  increase  has  been  in  a  more  rapid  ratio  than  the  diminution:  for  the 
first  four  years  afterwards,  the  average  was  one  hundred  and  nineteen, 
and  it  has  gradually  progressed  until  the  average  of  the  last  twelve  years 
is  three  hundred  and  eleven;  that  is,  within  a  fraction  of  eight  times  as 
many  as  it  was  in  1793;  but  the  population  of  the  state  in  that  time  had 
very  little  more  than  doubled(c),  so  that  crime  has  increased  in  propor- 
tion to  the  population  nearly  as  eight  is  to  two.  Most  fortunately  for 
the  cause  of  truth,  humanity  and  wise  legislation,  the  cause  of  this  ebb 
and  flow  of  crime  is  not  difficult  to  discover  ;  and  when  pointed  out,  it 
will  be  more  persuasive  to  show  that  there  is  a  check  that  may  be  effec- 
tually applied  to  the  increase  of  offences  than  the  most  ingenious  argu- 
ment that  could  be  suggested. 

In  the  three  years  previous  to  the  year  1790,  when  Philadelphia 
prison  was  first  used  for  the  purpose  of  inflicting  punishment  by  solitary 
confinement,  three  hundred  and  twenty-eight  convicts  had  been  con- 
fined. Of  these,  about  two-thirds  were  committed  for  short  terms,  and 
others  were  discharged  by  pardon;  so  that  at  the  commencement  of  the 
year  1 790,  not  more  than  about  two  hundred  remained.  The  accommo- 
dations of  the  prison  afforded  the  means  of  separation  for  this  small 
number,  and  the  humane  zeal  of  the  inspectors,  quickened  by  the  natural 
desire  to  give  efficacy  to  the  plan  which  they  had  themselves  formed, 
urged  on  the  labour  and  superintended  the  instruction  of  the  convicts. 
In  that  year,  the  first  of  the  experiment,  but  before  its  result  could  be 
known,  one  hundred  and  nine  convictions  took  place.  In  the  next,  its 

(a)  Vaux's  Notices.  (J)   Seybert's  Statistics, 

(c)  Four  hundred  and  ninety-five  thousand  one  hundred  and  eighty-fire,  in  1793.  One 
million  forty-nine  thousand  four  hundred  and  fifty-eight,  in  1820. 


308  INTRODUCTORY  REPORT  TO 

beneficent  effects  began  to  be  felt;  the  convictions  were  reduced  to 
seventy-eight,and  in  thetwo  successive  years  to  sixty-three  and  forty-five. 
But  in  the  mean  time(a)  the  prison  began  to  be  crowded,  solitary  labour 
was  necessarily  abandoned,  even  classification  became  impossible  ;  the 
same  prison  serving  for  vagrants,  fugitive  apprentices^),  and  those  com- 
mitted for  trial;  a  relaxation  of  discipline  was  the  natural  consequence  of 
the  indiscriminate  association,  and  the  increase  of  convictions,  in  every 
succeeding  term  of  four  years,  bears  an  exact  proportion  to  the  increased 
numbers  in  the  prison.  This  double  result  of  a  rapid  and  before  un- 
heard of  decrease  while  the  convicts  were  separated  and  employ- 
ed, and  an  increase  almost  in  the  same  ratio  when  they  were 
suffered  to  associate,  seems  to  solve  the  great  problem  of  penal  jurispru- 
dence, and  points  to  seclusion  and  labour  as  an  effectual  remedy  for  the 
prevention  of  crime  :  for  these  effects  were  produced  without  any 
change  in  the  state  of  society  at  the  two  periods,  that  could  be  favour- 
able to  such  results;  on  the  contrary,  an  increase  of  population  while 
crimes  were  decreasing,  and  the  same  increase,  but  only  of  one  half,  in 
the  numbers  of  the  people  during  the  other  period,  when  crimes  in- 
creased fourfold.  This  practical  result,  so  decisive  of  the  truth  of  the 
theory,  founded  on  a  consideration  of  human  nature,  with  other  corro- 
borating facts,  has  confirmed  me  in  the  design,  not  only  of  persevering  in 
my  first  recommendation  of  imprisonment,  solitude  and  labour,  indiffer- 
ent degrees,  and  under  different  modifications,  as  the  principal  sanctions 
of  the  code,  but  it  has  become  the  basis  of  my  whole  system  of  prison 
discipline;  and  from  the  well  attested  fact  that  a  plan,  by  no  means  per- 
fect, persevered  in  for  only  four  years,  banished  some  crimes,  and  rapid- 
ly reduced  the  number  of  others  nearly  two-thirds,  I  draw  the  cheering 
conclusion  that,  by  giving  to  the  system  the  improvements  of  which  it 
is  susceptible,  the  sum  of  human  happiness  may  be  increased  by  the 
repression  of  crimes  and  of  the  evils  which  result  both  from  their  com- 
mission and  punishment. 

My  position  is,  that  imprisonment,  with  seclusion  and  labour,  as  a 
punishment,  will  diminish  the  offences  for  which  it  is  inflicted;  but  that 
imprisonment  without  seclusion  will  increase  them.  What  will  be  the 
effect  of  solitary  confinement  without  labour,  remains  to  be  tried.  The 
Pennsylvania  experiment  proves  conclusively,  that  while  the  numbers 
were  not  too  great  to  admit  of  seclusion,  offences  diminished;  and  when 
it  was  no  longer  practicable,  they  increased.  In  all  the  other  states  a 
similar  result  has  been  observed,  during  the  first  years.  When  there 
was  room  for  classification,  the  most  sanguine  hopes  of  humanity  were 
surpassed  by  the  effect(c).  But  with  the  promiscuous  intercourse  of  the 
convicts,  offences  increased  both  in  number  and  atrocity.  This  great 
truth,  then,  is  supported  in  both  its  parts  by  experiment,  the  most  con- 
clusive of  all  proof,  when  it  has  been  so  oftened  repeated,  under  differ- 
ent circumstances,  as  to  show  the  uniform  result  is  produced  by  the  same 
cause,  and  when  it  confirms  a  theory  to  which  no  abstract  objection  can 
be  conclusively  urged.  But  here  the  theory  is  emphatically  one  of 

(a)  No  provision  had  been  made  for  the  increased  number  of  prisoners,  which,  of  all  de- 
scriptions, amounted,  in  1793,  to  the  average  number  of  450. 

(&)  Petition  of  the  Society  for  Public  Prisons,  1801—1803. 

(c)  See  reports  to  the  Se&ate  of  New- York,  and  the  reports  of  all  the  state  prisons  in  the 
different  states. 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  309 

that  kind.  Of  all  the  crimes  in  the  catalogue  of  human  depravity,  four- 
fifths  are,  in  different  forms,  invasions  of  private  property:  and  the 
motive  for  committing  them  is  the  desire  of  obtaining,  without  labour, 
the  enjoyments  which  properly  brings.  The  natural  corrective  is  to 
deprive  the  offender  of  the  gratifications  he  expects,  and  to  convince 
him  that  they  can  be  acquired  by  the  exertions  of  industry.  The  re- 
maining proportion  of  offences  are  such  as  arise  from  the  indulgence  of 
the  bad  passions,  and  for  those  also  solitude  and  employment  are  the 
best  correctives.  But  whatever  corrects  the  desire  or  the  passion  that 
prompts  the  offence,  acts  in  the  double  capacity,  first  of  punishment, 
until  the  desire  is  repressed,  and,  afterwards,  when  it  is  effected,  of  re- 
formation. As  an  example,  too,  it  is  infinitely  more  efficacious  than 
any  other  penalty.  When  it  is  seen  that  offences  which  were  com- 
mitted to  avoid  labour  and  to  increase  the  enjoyments  of  society,  lead 
only  to  solitude  and  labour,  and  that  the  passions  which  caused  the 
more  serious  crimes,  are  to  be  kept  under  the  rigid  restraint  of  absti- 
nence and  reflection,  in  the  fearful  loneliness  of  a  cell;  when  these  ex- 
amples are  permanent,  and  by  a  rigid  administration  of  justice  believed 
to  be  inevitable,  who  that  studies  human  nature  can  doubt  the  effect  ? 
Therefore,  the  experiments  of  Pennsylvania  and  of  the  other  states,  in 
the  first  years  of  their  operation,  as  well  as  their  subsequent  failure, 
have  but  confirmed  a  theory  true,  because  it  was  drawn  from  the  work- 
ings of  the  human  mind.  They  succeeded  at  first  exactly  in  the  pro- 
portion to  the  strictness  of  the  seclusion;  they  failed  precisely  in  the 
ratio  of  its  relaxation. 

Solitude  and  labour,  then,  are  the  two  great  remedies.  How  are  they 
to  be  employed  ?  Is  the  confinement  to  be  a  rigid,  unbroken  solitude, 
or  only  a  seclusion  from  the  corruption  of  evil  counsel  and  example  ? 
Is  it  to  be  permanent  for  the  whole  term  of  the  sentence,  or  to  be  miti- 
gated by  proofs  of  industry  and  amendment  ?  Is  the  labour  to  be  forced 
or  voluntary,  and  is  its  principal  object  pecuniary  profit  to  the  state, 
or  the  means  of  honest  support  to  the  convict  ?  These  are  the  great 
questions  to  be  decided  before  we  enter  on  the  consideration  of  a  multi- 
tude of  subordinate  details. 

When  imprisonment  and  labour  were  substituted  for  corporal  punish- 
ment, the  evils  of  promiscuous  association  became  apparent.  The 
separation  most  obviously  required  was  that  of  the  sexes,  and  this 
seems  to  have  been  universally  introduced.  But  it  required  little  ob- 
servation or  knowledge  of  human  nature  to  discover  that  something 
more  was  necessary  ;  that,  as  a  place  of  punishment,  a  penitentiary 
would  soon  lose  its  terrors,  if  the  depraved  inhabitants  were  suffered 
to  enjoy  the  society  within,  which  they  had  always  preferred  when  at 
large  ;  and  that,  instead  of  a  place  of  reformation,  it  must  become  the 
best  institution  that  could  be  devised  for  instruction  in  all  the  mys- 
teries of  vice  and  crime,  if  the  professors  of  guilt  are  suffered  to  make 
disciples  of  those  who  may  be  comparatively  ignorant.  To  remedy 
this  evil,  what  is  called  classification  was  resorted  to  ;  first,  the  young 
were  separated  from  the  old,  then  the  analogous  division  was  made 
between  the  novice  and  the  practised  offender  ;  further  subdivisions 
were  found  indispensable,  in  proportion  as  it  was  discovered  that  in 
each  of  these  classes  would  be  found  individuals  of  different  degrees  of 
depravity,  and,  of  course,  corrupters,  and  those  ready  to  receive  their 
lessons.  Accordingly,  classes  were  multiplied,  until,  in  some  prisons 


310  INTRODUCTORY  REPORT  TO 

in  England  we  find  them  amounting  to  fifteen  or  more.  But,  all  this 
while,  the  evident  truths  seemed  not  to  have  had  proper  force  :  first, 
that  moral  guilt  cannot  always  be  discovered,  and  if  discovered,  so  nicely 
appreciated  as  to  assign  to  each  one  infected  with  it,  his  comparative 
place  in  the  scale ;  and  that  if  it  could  be  so  discovered  it  would  be 
found  that  no  two  would  be  found  contaminated  in  the  same  degree. 
Secondly,  that  if  these  difficulties  could  be  surmounted,  and  a  class 
could  be  formed  of  individuals  who  had  advanced  exactly  to  the  same 
point,  not  only  of  offence,  but  of  moral  depravity,  still  their  association 
would  produce  a  further  progress  in  both,  just  as  sparks  produce  a  flame 
when  brought  together,  which  separated,  would  be  extinguished  and 
die.  It  is  not  in  human  nature  for  the  mind  to  be  stationary  ;  it  must 
progress  in  virtue  or  in  vice  :  nothing  promotes  this  progress  so  much 
as  the  emulation  created  by  society;  and  from  the  nature  of  the  society 
will  it  receive  its  direction.  Every  association  of  convicts,  then,  that 
can  be  formed,  will  in  a  greater  or  less  degree  pervert,  but  will  never 
reform,  those  of  which  it  is  composed  :  and  we  are  brought  to  the 
irresistible  conclusion  that  classification  once  admitted  to  be  useful,  it 
is  so  in  an  inverse  proportion  to  the  numbers  of  which  each  class  is 
composed  ;  and  is  not  perfect  until  we  come  to  the  point  at  which  it 
loses  its  name  and  nature,  in  the  complete  separation  of  individuals. 
We  come,  then,  to  the  conclusion  that  each  convict  is  to  be  separated 
from  his  fellows.  But  is  he  to  be  debarred  from  all  other  society  ?  In 
discussing  this  question  we  must  always  have  before  our  eyes  the  ends 
we  propose  to  attain  by  the  discipline  we  inflict — punishment  and 
reformation.  So  much  punishment  as  is  necessary  to  deter  others  from 
committing  the  crime,  and  the  offender  from  repeating  it  ;  every  alle- 
viation not  inconsistent  with  those  objects,  that  will  cause  the  culprit 
gradually  to  prefer  a  life  of  honest  industry,  not  from  the  fear  of  punish- 
ment, but  from  a  conviction  of  its  utility.  That  system  of  prison  dis- 
cipline will  make  the  nearest  approach  to  perfection  that  shall  best 
attain  these  objects.  In  order  to  judge  in  what  degree  the  plan  I  pro- 
pose is  entitled  to  this  distinction,  it  will  be  necessary  to  examine  other 
systems,  and  a  discussion  of  their  defects  will  enable  us  to  discover 
how  far  that  which  is  proposed  as  a  substitute  avoids  them. 

Imprisonment  and  labour  have  been  adopted,  as  a  punishment,  in  four- 
teen out  of  twenty-four  states.  In  none  of  these  has  there  been,  until 
very  lately,  any  individual  seclusion,  except  for  breaches  of  prison 
discipline,  and,  during  different  periods,  for  the  more  atrocious  offences  : 
the  consequences  of  this  radical  fault  were  such  as  might  have  been 
expected — an  increase  rather  than  a  diminution  of  crime  ;  and  the  pro- 
digal, indiscreet  and  ruinous  exercise  of  the  pardoning  power,  com- 
bined to  render  abortive  the  best  experiment  ever  made  for  the  sup- 
pression of  vice.  The  people  who  were  taxed  for  the  support  of  these 
institutions,  saw  in  them  only  the  nurseries  of  crime,  and  were  natu- 
rally desirous  of  throwing  off  the  burthen  ;  and  it  was  made,  in  one 
important  state,  a  serious  question  whether  they  should  not  resort  to 
sanguinary  and  infamous  punishments.  The  calm  reasoning  and  spirit 
of  investigation,  which  sooner  or  later  resume  their  place  in  the  coun- 
cils of  our  republics,  soon  discovered  that  the  experiment  had  not  been 
fairly  tried  ;  the  cause  of  its  failure  became  apparent ;  and  all  agreed 
that  imprisonment  without  separation  would  never  serve  either  for 
punishment  or  reform.  Two  different  systems  were  proposed  to  re- 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  311 

medy  the  evil;  one  is  in  the  course  of  experiment;  the  other  has  not 
yet  been  examined,  but  preparations  are  nearly  completed  for  carrying 
it  into  effect  on  a  most  extensive  scale,  and  in  a  degree  that  must  com- 
pletely test  its  utility.  In  New-York  there  are  two  penitentiaries,  and 
a  third  is  now  constructing :  one  of  them,  in  the  city,  is,  from  its  con- 
struction, and  the  numbers  confined  in  it,  necessarily  conducted  on  the 
old  vicious  plan,  which  is  to  be  abandoned  as  soon  as  the  third  prison 
is  finished;  the  other,  at  Auburn,  a  village  in  the  interior  of  the  state,  is 
the  model  for  the  new  penitentiary,  and  by  the  partisans  of  the  system 
on  which  it  is  managed,  is  declared  to  be  one  that  ought  to  serve  as  a 
pattern  for  all  others.  That  system  is  briefly  this  :  absolute  solitude 
during  the  night  ;  joint  labor  during  the  day,  but  without  any  commu- 
nication with  each  other  by  word  or  sign  ;  meals  taken  at  the  same 
table,  but  so  disposed  as  not  to  see  the  faces  of  those  opposite  to  them  ; 
religious  instruction  on  Sundays,  received  in  a  body  ;  and  a  Sunday 
school  in  the  same  manner,  twice  a  day  ;  both  in  church  and  school 
the  same"  prohibition  of  intercourse  ;  a  full  diet  of  meat,  bread  and 
vegetables  ;  comfortable  bedding,  in  very  narrow  but  well-aired,  well 
warmed  cells,  and  the  utmost  attention  to  cleanliness  in  every  depart- 
ment of  the  prison  ;  visitors  are  admitted,  but  without  permission  to 
speak  to  the  convicts — who  on  their  discharge  receive  a  sum  not  exceed- 
ing three  dollars,  without  any  relation  to  their  earnings  ;  their  work 
is  uninterrupted  during  the  day,  except  by  their  meals,  and  is  gener- 
ally contracted  for  by  mechanics,  who  find  the  materials.  This  enu- 
meration is  not  one  of  what  is  required  but  what  is  actually  done. 
And  the  strictness  with  which  these  rules  have  been  enforced  is  such, 
that  it  is  asserted  that,  among  thirty  or  forty,  working  together  for 
years  in  the  same  shop,  no  two  of  them  know  each  others  names. 
Mr  Elam  Lynds,  a  gentleman  who  formerly  served  in  the  army,  has 
the  credit  of  introducing  this  order — it  was  begun  with  his  appoint- 
ment as  keeper  of  the  Auburn  prison,  and  he  has  executed  it  with 
most  astonishing  success  in  superintending  the  building  of  the  new  pri- 
son at  Sing  Sing,  where  he  has  had  two  hundred  convicts  employed, 
with  no  other  place  of  confinement  than  a  wooden  shed,  in  which  they 
slept,  and  with  only  eight  or  ten  under  keepers  and  guards,  and  yet  the 
same  industry,  order  and  obedience,  was  preserved  as  there  was  within 
the  walls  of  the  prison.  Nothing  can  be  more  imposing  than  the  view 
of  a  prison  conducted  on  these  principles.  Order,  obedience,  sobriety, 
industry,  religious  and  literary  instruction,  and  solitary  reflection,  all 
seem  to  promise  beneficial  effects  on  the  convict,  while  important  points 
of  secure  detention  and  economy  are  attained  for  the  state.  Yet  with 
all  these  advantages  I  cannot  offer  this  system  for  adoption  ;  and  my 
chief  objection  arises  from  the  means  employed  to  procure  them.  It 
is  by  the  lash(a),  put  into  the  hands  of  the  keeper,  to  be  used  at  dis- 

(a)  "  It  has  already  appeared  that,  as  a  mode  of  punishment,  and  as  the  means  of  enforc- 
ing prison  discipline,  in  this  prison,  STRIPES  are  generally  resorted  to  as  a  punishment,  in 
the  presence  of  the  inspectors  ;  and  to  enforce  obedience,  by  the  keepers,  at  all  times  when 
necessary.  These  stripes  are  required  by  the  present  agent  to  be  inflicted  by  the  keeper 
with  a  raw  hide  whip,  and  applied  to  the  back,  &c." — Power's  Account  of  the  State  Pri- 
son at  Auburn,  p.  60. 

"  At  Auburn  stripea  are  almost  the  only  mode  of  punishment." — Report  of  Massachu- 
setts Society. 


312  INTRODUCTORY  REPORT  TO 

cretion,  and  by  a  power  strangely  I  think  declared  to  be  legally  vested 
in  tbe  turnkey(a).   The  objections  to  this  system  are  obvious.  And  first, 
the  anomaly  presents  itself,  not  to  call  it  by  a  harsher  name,  of  per- 
mitting a  punishment  to  be  inflicted  at  the  discretion  not  only  of  a 
man  at  the  head  of  the  institution,  but  by  his  under  officers,  at  their 
discretion,  and  that  too  for  disrespect,  or  the  vague  charge  of  disobe- 
dience, which  punishment  the  law  has  abolished  as  too  ignominious, 
unequal   and  cruel,  to  be  inflicted  by  the  court  for  dangerous  crimes. 
The  discretion  is  limited,  say  the  court  in  their  opinon,  under  which 
it  is  to  be  considered. to  be  legal,  to  the  enforcement  of  obedience  for 
its  object,  and  in  degree  to  the  punishment  necessary  to  secure  it. 
Can  any  thing  be  more  vague?     Obedience  to  what  ?     Lawful  com- 
mands is  the  answer  ;  but  it  is  unlawful  to  break  any,  the  minutest 
regulation  of  the  prison  ;  it  is  unlawful  to  deny  any  breach  of  them 
when  the  convict  is  accused  by  the  turnkey  ;  therefore,  if  a  convict 
speak  to  his  neighbour  he  is  whipped,  and  if  he  should  deny  having 
done  so  he  is  whipped.     The  very  case  in  which  the  stripes  were 
declared  lawful,  was  one  in  which  they  were  severely  inflicted  to 
make  the  convict  confess,  and  when  he  had  confessed,  they  ceased. — 
Here  is  every  character  of  the  torture,  applied  by  the  lowest  officer 
in  the  prison — and  this  by  the  court  of  the  state  of  New- York  was 
declared  to  be  lawful,  if  the  jury  should  think  that  the  chastisement 
was  not  greater  in  degree  than  was  necessary  to  enforce  obedience. 
Now  the  obedience  required  in  this  case  was  the  confession  ;  and  it 
follows  according  to  the  decision  of  the  court,  that  such  force  as  was 
necessary  lo  this  end  was  justifiable  ;  in  other  words,  that  torture  by 
infliction  of  stripes  might  legally  be  used  in  the  state  of  New-York,  by 
a  turnkey  against  a  convict,  according  to  the  common  law,  although 
the  legislature  has  enacted,  "That  if  any  prisoner  in  either  of  the  state's 
prisons  shall  refuse  to  comply  with  the  rules,  it  shall  be  lawful,  and  is 
declared  to  be  the  duty  of  the  keepers,  under  the  direction  of  the 
inspectors,  to  inflict  corporal  punishment  by  whipping,  not  to  exceed 
thirty-nine  lashes,  or  to  confine  them.     Provided,  that,  when  corporal 
punishment  is  inflicted  on  any  person  by  whipping,  it  shall  be  the 
duty  of  at  least  two  of  the  inspectors  to  be  present."     Then  accord- 
ing to  the  discipline  of  the  prison,   as  declared  by  the  court  to  be 
lawful,  only  thirty-nine  stripes  can  be  inflicted  at  a  time  for  any  of- 
fence, and  that  by  order  of  the  inspectors,  and  in  the  presence  of  two 
of  them  ;  but  a  turnkey,  whenever  it  is  necessary  to  enforce  obedience, 
or  a  confession,  may  inflict  as  many  as  he  pleases,  without  any  witness 
of  his  proceedings.     I  have  enlarged  upon  this  head,  more,  perhaps, 
than  was  necessary,  to  enforce  the  position  that  the  punishment  by 
stripes  was  an  anomaly  even  as  it  is  permitted  by  law  ;  and  I  have  de- 
tailed the  practice  independent  of  the  statute,  for  the  direct  purpose  of 
showing  the  principle  on  which  the  discipline  of  this  prison  rests  ;  and 
for  the  incidental  one  of  illustrating,  by  a  striking  example,  the  diffi- 
culty of  enforcing  a  statute  in  countries  governed  by  unwritten  law. 
Here,  because  the  common  law  permits  a  school-master  moderately  to 
correct  his  pupil,  and  an  officer  his  soldiers,  the  learned  judge  declares 
it  to  be  law,  that  the  turnkey  of  a  penitentiary,  an  institution  utterly 

(a)  Decision  of  the  court  in  the  case  of  The  People  v.  An  Under  Keeper  at  Auburn.— 
Power's  Account,  p.  62. 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  313 

unknown  to  the  common  law,  has  a  right  to  chastise  a  convict,  nay, 
more,  whip  him  until  he  confess  himself  guilty  of  an  offence  ;  and  this, 
too,  although  the  legislature  has  expressly  directed  that  when  he  is  whip- 
ped it  shall  be  by  the  direction  of  other  officers,  and  in  their  presence. 
Yet  this  decision  is  law  in  the  state  of  New  York,  and  is  published  as 
the  authority  by  which  the  discipline  of  this  prison  is  maintained. 

The  next  objection  to  this  system  is  its  evident  liability  to  abuse. 
The  talent  and  firmness,  tempered  by  moderation,  the  knowledge  of 
human  nature,  and  personal  courage  of  captain  Lynds,  who  introduced 
it,  and  who  began  by  procuring  a  waiver  of  all  interference  with  his 
plans  by  the  inspectors,  have  done  much  present  good ;  he  has  intro- 
duced order,  economy,  industry  and  cleanliness  ;  he  has  banished 
many  abuses  ;  and  his  system,  under  his  own  direction,  although  liable 
to  strong  objections,  is  yet  so  much  superior  in  effect  to  any  hitherto 
practised,  that  it  has  been  considered  as  a  model(«)  for  the  imitation  of 
the  world  ;  and  in  his  hands,  I  have  no  doubt,  that  many  beneficial 
effects  will  result  from  it.  But  what  security  have  we  that  the  same 
rare  qualities  will  be  found  united  in  another  ?  In  the  communications 
I  have  had  with  him,  he  says,  that  his  method  may  be  easily  taught. 
This  may  be  true,  but  unless  he  can  impart  his  integrity  and  modera- 
tion^) as  well  as  a  knowledge  of  his  discipline,  it  will  be  unsafe  to 
adopt  a  system,  that  must  depend  entirely  for  its  success  on  the  personal 
qualities  of  the  man  who  is  to  carry  it  into  effect. 

But,  even  if  we  were  sure  of  commanding  all  the  requisite  qualities 
and  talents  united  in  the  same  person,  still  there  are  faults,  inherent  in 
the  plan,  which  no  administration  can  cure.  Fear  is  the  great  princi- 
ple of  this  institution,  and  chastisement  of  the  most  degrading  kind  is 
the  instrument  to  excite  it.  If  the  sole  objects  were  to  preserve  order 
in  the  prison,  it  is  perhaps  as  effectual,  but  certainly  not  as  proper  a 
mode  as  can  be  devised.  But,  as  a  punishment,  it  fails  in  two  essen- 
tial points  ;  in  most  cases  it  will  not  deter  the  party  from  a  repetition 
of  his  crimes,  and  very  rarely  will  it  take  away  by  reformation  his 
inclination  to  relapse.  A  superficial  view  of  this  subject  has  led  to 
the  belief,  that  the  great  secret  of  penal  legislation  is,  to  annex  a  pen- 
alty of  sufficient  severity  to  every  offence  ;  and,  accordingly,  all  the 
variety  of  pains  that  the  body  of  man  could  suffer,  infamy  and  death, 
have  figured  as  sanctions  in  the  codes  of  all  nations;  but  although  these 
have  been  in  a  train  of  experiment  for  thousands  of  years,  under  every 
variety  that  government,  manners  and  religion  could  give,  they  have 
never  produced  the  expected  effect.  The  reason  is  to  be  found  in  that 
insurgent  spirit  with  which  man  was  endowed  by  his  beneficent  Cre- 
ator, to  answer  the  best  ends  of  his  nature.  The  same  feeling  that 
elevated,  refined,  and  applied  to  the  noblest  purpose,  animates  the 
patriot  to  resist  civil  tyranny,  and  the  martyr  to  defy  the  flames, 
when  it  is  perverted,  and  made  the  incentive  to  vice  and  crime,  goads 
on  the  convict  to  arraign  the  justice  of  his  sentence,  to  rebel  against 
those  who  execute  it,  and  to  counteract  its  effects  with  an  obstinacy  in 
exact  proportion  to  the  severity  of  the  punishment.  If  the  grossest 

(a)  Report  of  the  Massachusetts  Society. 

(6)  The  case  of  the  keeper,  above  alluded  to,  took  place,  I  believe,  after  Mr  Lynda  had 
left  the  Auburn  prison,  and  is  itself  a  strong  illustration  of  the  danger  of  unlimited  delega- 
tion of  power. 
2P 


314  INTRODUCTORY  REPORT  TO 

follies  and  absurdest  fancies  of  enthusiasm,  as  well  as  the  clear  truths 
and  pure  principles  of  religion,  are  extended  and  confirmed  by 
severe  punishments  and  persecution,  what  more  evident  proof  can  we 
require,  that  this  character  of  the  human  mind  braces  itself  with  an 
equal  energy  against  bodily  suffering,  whether  inflicted  for  the  correc- 
tion of  error  or  the  suppression  of  truth?  The  convict,  therefore,  who 
has  performed  his  daily  labour,  even  for  years,  under  the  pang  or  the 
dread  of  the  lash,  will  be  rather  less  deterred  from  the  repetition  of 
his  crimes,  whenever  he  thinks  himself  secure  from  detection,  than  he 
would  have  been  by  a  milder  discipline,  because  the  spirit  of  hatred, 
revenge,  and  a  desire  to  retaliate  on  society,  are  stimulated  and  strength- 
ened by  the  principles  which  I  have  supposed  to  be  inherent  in  our 
nature.  But,  as  the  object  of  punishment  is  not  only  to  prevent  the 
repetition,  but  also  the  commission  of  offences,  we  must  inquire  whe- 
ther this  discipline  is  calculated,  in  any  degree,  to  have  this  effect?  Its 
peculiar  characteristic  is  severity.  We  are  told,  indeed,  that  its  actual 
application  to  individuals  is  not  frequently  required,  because  of  the 
certainty  with  which  punishment  follows'the  offence  ;  but  the  dread 
of  it  is  always  there,  and  the  uplifted  lash,  although  its  stroke  is  avoided 
by  submission,  is,  perhaps,  as  great  a  punishment  as  the  actual  pain, 
because  it  is  attended  with  the  moral  suffering  of  degradation.  We 
must  repeat  then  that  the  nature  of  this  discipline  does  no  more  than 
add  severity  to  the  punishment  ;  and  he  must  be  blind  to  the  uniform 
history  of  penal  jurisprudence,  who  can  believe  that  increased  severity 
diminishes  the  recurrence  of  crimes.  The  same  operation  of  the  mind, 
to  which  I  have  alluded,  that  gives  the  energy  of  mental  resistance  to 
the  sufferer,  operates  by  a  sympathy  invariably  called  into  action,  on 
all  who,  by  their  state  in  society,  their  education  or  manners,  have 
any  feelings  in  common  with  him  ;  and  by  the  same  system  of  severity 
converts  are  made  to  religion,  proselytes  to  impostures,  and  accessaries 
to  offences.  The  system,  therefore,  to  judge  from  analogy,  will  not 
deter.  Will  it  reform?  Judging  by  the  same  rule,  for,  as  yet.  we  can- 
not have,  in  any  conclusive  degree,  the  light  of  experience,  I  think  it 
cannot.  The  force  of  habits  on  the  mind  is  proverbial  ;  but  those 
which  have  this  power,  are  such  as  were  either  formed  in  early  life,  or 
were  produced  by  repeated  voluntary  acts  ;  few  instances,  it  is  thought, 
can  be  found  in  which  any  series  of  constrained  acts,  have  produced 
the  habit  of  continuing  them  after  the  force  was  removed  ;  but  this 
part  of  the  subject  will  be  more  fully  discussed,  when  I  shall  explain 
the  reformatory  system  contained  in  the  code  which  I  submit  for  con- 
sideration. I  will  only  now  remark  that,  so  far  as  the  force  is  applied 
to  coerce  the  convict  into  a  knowledge  of  some  trade,  by  which  he  may 
earn  a  subsistence,  so  far  it  may  produce  amendment ;  but  then  if  the 
same  labour  can  be  made  a  voluntary  act,  the  skill  attained  in  it  will 
probably  be  more  perfect,  and  undoubtedly  there  is  a  greater  chance  of 
its  being  persevered  in. 

I  conclude  then  that  this  system,  although  it  avoids  the  obvious  de- 
fect of  promiscuous  confinement  at  night,  and  by  the  strictness  of  its 
discipline,  prevents  many  of  the  evils  attending  associated  labours  by 
day,  still  has  defects,  that  will  not  permit  me  to  agree  with  the  com- 
mittee of  the  Massachusetts  Society,  in  considering  it  as  a  model  for 
imitation.  Before  1  develope  the  features  of  one,  in  which  I  think  these 
defects  are  remedied,  while  all  its  advantages  are  retained,  it  will  be 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  315 

necessary  to  examine  the  rival  plan  proposed  in  Pennsylvania.  This 
consists  in  solitary  confinement,  strictly  so  called,  by  which,  say  the 
committee  who  proposed  it,  we  mean  "such  an  entire  seclusion  of  con- 
victs from  society,  and  from  one  another,  as  that  during  the  period  of 
their  confinement,  no  one  shall  see  or  hear,  or  be  seen  or  heard,  by 
any  human  being,  except  the  jailor,  the  inspectors,  or  such  other  per- 
sons as,  for  highly  urgent  reasons,  may  be  permitted  to  enter  the  walls 
of  the  prison"(a).  To  carry  this  plan  into  execution  a  prison  has  been 
erected  at  Pittsburgh,  and  another  is  nearly  completed,  on  a  most  ex- 
tensive scale,  at  Philadelphia.  This  last  is  most  admirably  contrived 
for  perfect  seclusion  :  the  purposes  of  cleanliness  do  not  demand  the 
entrance  of  an  attendant,  or  the  egress  of  the  prisoner.  His  food  is 
furnished  without  his  seeing  the  hand  that  brings  it  ;  and  a  complete 
inspection  of  every  part  of  the  cell  is  had,  while  the  prisoner  can  nei- 
ther see  nor  hear  the  approach  of  his  keeper  ;  all  is  silence  and  soli- 
tude, and,  if  these  alone  can  work  reformation,  there  was  never  a  build- 
ing better  calculated  to  produce  the  effect.  Whether  labour  is  to  be 
permitted  or  enjoined  does  not  seem  to  be  determined.  There  is  a 
court,  however,  annexed  to  each  cell,  in  which  solitary  labour  may  be 
performed,  without  much  danger  of  communication  between  the  pri- 
soners. This  system  is  simple,  and  has  few  details  beyond  those  I 
have  mentioned  in  describing  it.  The  advantages  expected  from  it  are 
described  in  the  report  to  which  I  have  referred.  Reformation  it  is 
hoped  will  be  produced  by  the  reflections  inseparable  from  solitude, 
and  the  severity  of  the  punishment  is  well  described  in  the  report,  as 
one  that  will  almost  make  the  patient  "  the  victim  of  despair,"  while 
he  is  "shut  up  in  a  cell  for  weeks  and  months  and  years  alone,  to  be 
deprived  of  all  converse — while  he  counts  the  tedious  hours  as  they 
pass,  a  prey  to  the  corrodings  of  conscience  and  the  pangs  of  guilt :" 
and  this,  it  is  supposed,  will  effectually  deter  the  convict  from  repeat- 
ing his  crime,  and  make  the  vicious  fly  from  a  region  "  where,  convic- 
tion produces  so  much  misery."  As  the  severity  of  the  punishment 
is  increased,  its  duration  is  proposed  to  be  diminished  ;  which  will  pro- 
duce a  saving  that  the  committee  believe  will  compensate  for  the  loss 
incurred  by  the  difference  between  solitary  and  social  labour,  if  the 
former  should  be  allowed.  It  is  evident  that  here  the  contagion  of  evil 
associations  is  effectually  prevented  without  the  degrading  discipline 
of  the  New  York  plan  ;  that  the  security  is  more  perfect,  and  at  less 
expense  ;  and,  if  they  should  make  such  relaxation  from  the  strictness 
of  solitude  as  to  permit  instruction  and  labour,  that  it  is  liable  to  much 
fewer  objections  than  the  other.  If,  on  the  contrary,  the  plan  of  the 
committee,  in  their  understanding  of  what  is  meant  by  solitude,  be 
carried  strictly  into  execution,  without  instruction,  without  labour, 
those  objections  would  be  of  the  most  serious  nature.  Their  force 
will  be  better  understood  when  I  show  in  what  points  the  plan  I  pro- 
pose differs  from  those  I  have  thus  reviewed. 

I  premise  that  no  plan  of  jurisprudence,  combining  the  prevention 
of  crime  with  the  reformation  of  the  criminal,  has  ever  yet  been  at- 
tempted on  such  a  scale  as  would  embrace  all  the  different  stages  and 
departments  of  criminal  procedure.  The  only  experiment  that  has 
been  made,  that  which  is  called  the  penitentiary  system,  has  been  ap- 

(a)  Report,  1821. 


316  INTRODUCTORY  REPORT  TO 

plied  solely  to  the  substitution  of  imprisonment  for  other  more  acute 
bodily  suffering  as  a  punishment  after  conviction,  in  the  expectation 
that  it  would  not  only  deter  but  reform  ;  and  the  results,  during  the 
first  years  of  the  trial,  gave  encouraging  proof  that,  if  conducted  on  pro- 
per principles,  it  must  have  the  most  beneficial  effect.  But  the  wretched 
economy  that  refused  the  accommodations  for  separate  confinement ; 
the  exercise  of  the  pardoning  power,  ill-advised  in  many  instances,  in 
others  resulting  from  a  necessity  created  by  that  economy ;  and  the 
neglect  of  moral  instruction,  co-operated  to  arrest  the  course  of  this 
first  great  improvement ;  and  all  the  different  state  committees  unite 
with  that  of  Pennsylvania,  in  the  declaration,  that  the  great  peniten- 
tiary system  is  no  longer  in  operation.  But  this,  even  if  it  had  been 
fully  tried,  is  but  one  part,  though  an  important  one,  of  a  reformatory 
code  that  deserves  the  name.  To  be  perfect  in  its  object,  such  a  sys- 
tem should  begin  by  prescribing  a  plan  of  public  education,  not  con- 
fined to  the  elements  of  literature,  but  extended  particularly  to  the 
duties  of  a  citizen  towards  the  state,  and  of  men  towards  each  other  in 
every  relation  in  life,  and  to  those  principles  of  religion  which  are 
equally  acknowledged  by  all  sects.  It  would  only  be  repeating  trite 
maxims  and  acknowledged  truths,  were  the  necessity  of  an  early  edu- 
cation to  be  enlarged  upon  ;  but  it  is  its  operation,  when  extended  to 
all  classes  of  society,  in  preventing  offences,  that  is  here  considered  ; 
early  youth  is  the  season  in  which  the  germs  of  cupidity  are  to  be 
eradicated  : 

Eradenda  cupidinis 

Pravi  stint  element.!  :  et  tcneias  nimis 

Mentes  superioiibus 

Formandae  studiis 

It  is  there  our  legislation  on  this  subject  must  begin,  if  we  wish  that 
its  foundation  should  be  stable.  A  prejudice  has  been  entertained 
against  religious  instruction  in  public  institutions,  from  a  fear  of  their 
being  made  the  engines  of  proselytism  to  sectarian  doctrines — a  fear 
well  founded  in  countries  where  there  is  a  dominant  sect,  but  utterly 
groundless  here,  where  the  only  establishment  is  that  of  perfect  equa- 
lity, and  where  there  would  be  no  practical  difficulty  in  leaving  to  the 
parents  and  pastors  of  every  pupil,  the  care  of  instructing  him  in  the 
particular  dogmas  of  his  church,  at  the  same  time  that  the  principles 
in  which  all  concurred  might  be  inculcated  in  the  public  school  not 
only  as  duties  of  morality  but  of  religion.  It  is  astonishing  how  little 
use  has  been  made  of  this  powerful,  I  might  say,  when  properly  used, 
this  omnipotent  engine,  in  promoting  the  temporal  concerns  of  society, 
as  well  as  the  most  important  welfare  of  the  individuals  who  compose 
it.  When  it  has  been  called  into  action,  it  has  been  either  in  aid  of 
temporal,  often  absolute  power,  or  for  the  aggrandizement  of  a  parti- 
cular church.  In  our  happy  country  no  such  result  need  be  feared  ; 
and  if  this  important  part  of  a  system  for  diminishing  offence  was  within 
the  compass  of  my  undertaking,  I  should  offer  the  project  of  a  statute 
on  this  subject,  that  I  think  would  secure  the  most  perfect  equality  of 
religious  rights,  while  it  added  the  inestimable  advantages  of  religious 
sanction  in  the  prevention  of  crime.  These  advantages  cannot  be 
placed  in  a  stronger  point  of  light  than  is  done  by  a  gentleman  to  whose 
publications  on  this  subject  I  have  been  indebted  for  much  information 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  317 

in  fact,  as  well  as  instruction  in  argument.     "  If"  he  says  "  the  inflic- 
tion of  human  punishment  were  as  certain   as  their  promulgation, 
crimes  would  be  prevented  altogether.     But  as  it  is  impossible  for  any 
government  to  institute  such  a  system  of  laws  as  can  detect  and  punish 
all  offences,  the  daring  criminal  perceives  the  imperfection  ;  and,  trust- 
ing to  his  own  precautions,  and  availing  himself  of  time  and  circum- 
stances, flatters  himself  with  the  prospect  of  impunity.     Not  so  with 
the  denunciations  of  divine  punishment ;  which,  when  daily  impressed 
on  the  mind,  possess  a  sanction  at  which  mere  human  authority  can 
never  arrive,  and  bring  with  them  the  certainty  of  detection  and 
certainty  of  punishment,  which  alone  can,  in  all  cases  and  under  all 
circumstances,  prevent  the  perpetration  of  crime.     If,  then,  we  are 
once  able  to  produce  upon  the  mind  a  thorough  conviction  of  the  ex- 
istence of  one  supreme,  intelligent,  superintending  being,  the  creator 
of  all  things,  who  sees  through  all  his  works,  and  perceives  the  deepest 
recesses  of  the  human  heart,  and  who  will  reward  or  punish  every  one 
according  to  his  deeds,  this  will  not  only  remedy  the  defects  in  mere 
human  institutions  by  providing  that  continual  inspection,  discovery, 
and  punishment,  which  such  institutions  endeavour  in  vain  to  supply  ; 
but  will  correct  innumerable  offences  of  every  kind  which  they  do  not 
pretend  to  punish,   and  which   are  wholly  beyond  their  reach(a)." 
Such  a  plan  of  general  religious  instruction,  embracing  the  doctrines 
common  to  all  the  Christain  sects,  and  excluding  all  sectarian  doctrine, 
is  not  mere  theory.     It  has  been  for  years  practised  in  the  city  of  Bos- 
ton, where  nearly  100,000  dollars  are  appropriated  to  the  public  instruc- 
tion of  children  of  every  denomination,  and  where  the  forms  of  reli- 
gious instruction  have  been  settled  by  the  pastors  of  the  several  sects 
on  the  principles  I  have  laid  down  ;  and  such  success  has  attended  this 
honourable  and  liberal  experiment,  that,  although  the  schools  have  been 
in  operation  for  more  than  ten  years,  and  on  an  average  more  than 
three   thousand  have  been  educated  in  them   annually,  not  one   of 
those  educated  there  have   been  even   committed  for  a   crime(^). 
And  in  New^York  a  similar  effect  has  been  observed.     Of  the  thou- 
sands educated  in  the  public  schools  of  that  city,  taken  generally  from 
the  poorest  classes  of  society,  but  one,  it  is  asserted,  has  ever  been  con- 
victed, and  that  for  a  trifling  offence(c). 

I  should  apologize  for  drawing  the  attention  of  the  legislature  to  a 
subject  that  might  seem  foreign  to  the  plan  which  this  report  is  intend- 
ed to  elucidate,  if  public  education  were  not  found  to  be  one  of  the  best 
means  of  preventing  crimes,  and  if  the  reflections  here  made  did  not  apply 
to  the  instruction  which  forms  so  large  a  part  of  the  prison  discipline 

(a)  Roscoe.    Additional  Observations  on  Penal  Jurisprudence. 

(6)  As  far  as  the  reporter  is  informed,  the  United  States  have  given  the  first  example,  in 
modern  times,  of  provision  for  education,  furnished  at  the  public  expense  to  all  the  commu- 
nity. The  early  colonists  of  New-England  set  the  example;  the  system  is  coeval  with  the 
first  settlement  of  Massachusetts,  and  has  with  the  most  enlightened  spirit  of  legis- 
lation been  adopted  by  other  states.  The  liberal  arrangement  with  respect  to  religious  in- 
struction is  not  confined  to  the  period  of  ten  years  mentioned  in  the  text — it  was  made  much 
earlier ;  but  the  fact  of  its  operation  in  preventing  crime  was  derived  from  a  gentleman, 
(S.  L.  Knapp,  Esq.)  who  spoke  from  knowledge,  acquired  during  that  period,  by  a  personal 
attention  to  the  schools,  and  a  close  professional  attendance  in  the  courts. 

(c)  Letter  from  Thomas  Eddy  to  the  commissioners,  1825,  containing  very  judicious  re- 
flections on  this  subject. 


318  INTRODUCTORY  REPORT  TO 

which  I  propose.  Adverting,  then,  only  to  this  as  to  a  subject  connected 
with,  but  not  embraced  by,  the  matter  of  this  report,  I  proceed  to  develop 
the  system  which,  after  the  maturest  reflection,  I  have  submitted  for  con- 
sideration. Its  objects  are  extensive  and  many,  but  are  so  closely  con- 
nected, that  to  strike  out  any  one  would  destroy  the  unity  that  must  give 
it  effect.  Instead  of  confining  it,  as  has  been  hitherto  done,  to  consider- 
ing imprisonment  and  labour  as  the  means  of  punishing  crimes  already 
committed,  I  draw  the  attention  of  the  legislature  to  the  means  of  prevent- 
ing them,  by  provisions  bearing  upon  pauperism,  mendicity,  idleness 
and  vagrancy,  the  great  sources  of  those  offences  which  send  the  greatest 
numbers  to  our  prisons. 

Political  society  owes  perfect  protection  to  all  its  members  in  their 
persons,  reputations  and  property  ;  and  it  also  owes  necessary  sub- 
sistence to  those  who  cannot  procure  it  for  themselves,  penal  laws  to 
suppress  offences  are  the  consequences  of  the  first  obligation,  those  for 
the  relief  of  pauperism  of  the  second;  these  two  are  closely  connected, 
and  when  poverty  is  relieved,  and  idleness  punished  whenever  it 
assumes  the  garb  of  necessity,  and  presses  on  the  fund  that  is  destined 
for  its  relief,  the  property  and  persons  of  the  more  fortunate  classes 
will  be  found  to  have  acquired  a  security,  that,  in  the  present  state  of 
things,  cannot  exist. 

This  truth  has  attracted  the  attention  of  most  civilized  nations,  but  by 
always  making  the  laws  of  pauperism  a  distinct  branch  of  legislation, 
never  connecting  it  with  their  penal  jurisprudence,  with  which  it  has 
so  intimate  a  relation,  it  has  been  a  source  of  more  perplexity  and  con- 
fusion, has  given  birth  to  more  bad  theory  and  ruinous  practice  than 
any  other  question  in  government.  Many  of  these  difficulties,  it  is 
supposed,  will  be  obviated  by  the  application  of  sound  principles,  before 
the  evil  has  become  so  incorporated  in  the  system  as  to  make  it  difficult 
to  be  eradicated. 

In  relation  to  this  subject,  society  is  formed  of  two  divisions  ;  those 
who  by  their  industry  or  property,  provide  subsistence  for  themselves 
and  their  families,  and  those  who  do  not.  The  latter  must  of  necess- 
ity draw  their  support  from  the  former,  either  by  depredations  on 
property  which  brings  them  within  the  purview  of  the  laws  for  pun- 
ishing crimes  ;  or  under  the  reality  or  pretence  of  pauperism  by  levy- 
ing a  tax  on  public  or  individual  charity.  It  is  to  this  last  description 
that  I  now  draw  the  attention  of  the  legislature.  They  may  be  divided 
into  three  classes. 

Those  who  can  labour  and  are  willing  to  labour,  but  who  cannot  find 
employment. 

Those  who  can  labour,  but  are  idle  from  inclination,  not  for  want  of 
employment. 

Those  who  are  unable  to  support  themselves  by  their  labour,  from 
infancy,  old  age,  or  infirmity  of  body  or  mind. 

The  first  and  last  of  these  classes  are  to  be  relieved,  not  only  by  force 
of  the  obligation  before  referred  to,  but  from  a  social  duty  not  less  im- 
perative, because  it  is  founded  on  humane  feelings,  and  is  enforced  by 
perhaps  the  best  precept  of  that  religion  which  places  charity  in  the 
highest  rank  of  the  virtues  it  inculcates.  This  relief  must  be  given  by 
providing  means  of  employment  for  the  industrious,  and  gratuitous 
support  for  the  helpless.  The  middle  class  includes  those  who,  under 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  319 

the  name  of  vagrants  and  able  bodied  beggars,  are  placed  in  society  on 
the  verge  between  vice  and  crime,  vicious  enough  to  require  inspection 
and  restraint,  not  so  palpably  guilty  as  to  justify  severer  punishment : 
abounding  in  large  cities,  they  are  the  hot-beds,  in  which  idleness 
and  profligacy  are  forced  into  crime,  and  are  properly  the  object  of 
coercive  justice,  but  they  cannot  become  so  without  adopting  the  means 
necessary  to  distinguish  and  separate  them  from  the  innocently  poor, 
and  it  is  this  necessity  which  brings  that  class  also  within  the  scope  of  the 
measures  for  preventing  crimes.  It  was  thought  that  a  good  system 
should  not  only  restrain  the  vicious,  and  punish  and  reform  the  guilty, 
but,  by  relieving  and  employing  the  poor,  put  an  end  to  one  of  the 
strongest  inducements  to  commit  offences.  For  these  reasons  the  Code 
of  Reform  and  Prison  Discipline  provides,  that  a  building  shall  be  erected 
to  be  called  the  House  of  Industry,  with  two  distinct  departments,  one 
for  voluntary  the  other  for  coerced  labour  ;  the  first  department  is  in- 
tended as  a  place  of  employment  for  all  those  who  are  capable  of  gain- 
ing, by  their  bodily  exertions,  a  complete  or  partial  support ;  and  for 
the  few  who  are  totally  helpless.  Its  character,  as  a  HOUSE  OF  REFUGE, 
will  be  hereafter  explained  ;  the  second  department  is  designated  as  a 
place  in  which  vagrants  and  the  able  bodied  mendicants  shall  be  forced 
to  labour  for  their  support. 

This  establishment  enters  most  essentially  into  the  plan  I  propose. 
Its  different  departments,  under  the  name  of  poorhouses,  workhouses, 
and  bridewells,  are  known  not  only  in  England  and  the  states  which 
derive  their  jurisprudence  from  that  country,  but  in  different  parts  of 
Europe,  but  they  are  there  distinct  institutions,  and  want  that  unity  of 
plan  from  which  it  is  thought  their  principal  utility  will  arise.  This  re- 
quires elucidation.  If  the  duty  of  supporting  its  members  be  once  ac- 
knowledged to  be  one  incumbent  on  society  to  the  extent  that  has  been 
assumed,  and  if  the  classification  I  have  made  is  correct,  the  necessity 
becomes  apparent  of  distinguishing  in  what  degree  the  different  appli- 
cants are  entitled  to  relief;  but  that  system  would  be  obviously  imper- 
fect that  was  confined  to  making  this  distinction,  and  granting  relief 
only  to  the  one  class  without  making  any  disposition  of  the  others. 
Every  applicant,  if  my  premises  be  true,  must  belong  to  one  or  the 
other  of  those  classes;  and  the  same  magistrate  who  hears  his  demand 
of  support,  or  before  whom  he  is  brought,  on  an  accusation  of  illegally 
obtaining  it,  is  enabled  at  once  to  assign  him  his  place.  Is  he  able  and 
willing  to  work,  but  cannot  obtain  it  ?  Here  is  employment  suited  to  his 
strength,  to  his  age,  his  capacity.  Is  he  able  to  work,  but  idle,  intem- 
perate, or  vicious  ?  His  habits  must  be  corrected  by  seclusion,  sobriety, 
instruction  and  labour.  Is  he  utterly  unable  to  provide  for  his  support  ? 
The  great  social  duty  of  religion  and  humanity  must  be  performed. 
One  investigation  on  this  plan  puts  an  end  to  the  inquiry.  Every  one 
applying  for  alms,  or  convicted  of  illegal  idleness  and  vice,  necessarily 
belongs  to  one  or  the  other  class,  and  immediately  finds  his  place  ;  he 
no  longer  remains  a  burthen  on  individuals,  and  society  is  at  once  re- 
lieved from  vagrancy  and  pauperism.  Instead  of  this  simple  process, 
the  poor  laws  are  generally  administered  by  agents  whose  duty  is  con- 
fined to  a  selection  of  proper  objects  of  charity,  without  power  to  punish 
the  impostor  who  preys  on  the  fund  provided  for  the  poor  and  the  help- 
less; and  without  any  means  to  enable  the  honest  labourer  or  artisan 
to  earn  his  subsistence.  This  establishment  once  made,  on  a  proper 


320  INTRODUCTORY  REPORT  TO 

scale,  the  plan  for  supporting  it  faithfully  executed,  the  second  degree 
in  this  scale  of  preventive  justice  will  be  obtained.  By  the  first,  your 
rising  generation  will  be  taught  habits  of  industrious  obedience  to  the 
law,  a  respect  for  religion,  and  a  love  of  justice  and  moral  duties.  By 
this,  which  is  the  second,  those  who  have  grown  up  without  these  ad- 
vantages, those  who  have  not  profited  by  them,  and  the  numerous  class 
of  adventurers  from  other  countries,  will  be  arrested  in  the  earliest  stages 
of  their  profligacy,  and  taught  to  be  industrious  before  they  become 
criminal. 

I  am  not  unaware  that  this  plan  is,  in  some  points,  founded  on  princi- 
ples that  are  much  questioned  by  many  who  have  written  on  this  part 
of  social  economy.  Without  making  this  report  a  vehicle  for  the  full 
discussion  of  those  principles,  it  will  be  necessary  briefly  to  state  the  ob- 
jections that  have  been  made,  with  my  reasons  for  not  yielding  to  their 
force. 

The  policy,  and  sometimes  the  obligation,  of  a  public  provision  for  the 
poor,  has  been  forcibly  assailed  in  England,  and  by  men  of  high  repu- 
tation here.  The  argument  is  shortly  this.  The  duty  to  provide  for 
the  poor  is  rather  a  moral  than  a  civil  obligation:  it  binds,  successively, 
relations,  friends,  wealthy  individuals,  and,  last  of  all,  society,  which 
can  be  called  on  to  support  those  only  who  are  not  provided  for  by  in- 
dividuals. But  if  this  obligation  upon  society  be  once  acknowledged 
and  acted  on,  the  individuals  who  stand  in  a  nearer  relation  to  the  pau- 
per will  at  once  disregard  a  duty  which  has  only  a  moral  sanction,  and 
the  government  will  have  the  exclusive  charge  of  the  burthen.  And 
this,  according  to  the  argument,  is  not  all:  the  certainty  of  an  ultimate 
support  will  lead  to  idleness,  extravagant  speculations,  imprudent  mar- 
riages, and  all  the  improvident  acts  that  naturally  produce  poverty;  and, 
in  time,  the  number  of  paupers  will  be  so  great  as  to  consume  the  re- 
sources of  the  state,  or,  if  quartered  on  smaller  divisions  of  the  country, 
to  reduce  the  individuals  composing  it  nearly  to  the  state  of  those 
whom  they  are  forced  to  relieve.  And  the  theory  is  supported  by  re- 
ference to  England,  where,  at  times,  every  fifth  man  is  a  pauper, 
and  the  poor-rates  equal  one-tenth(a)  of  the  whole  revenue  of  the 
kingdom. 

In  a  country  with  a  population  so  great  as  to  reduce  the  full  price  of 
labour  to  a  bare  subsistence,  and  at  the  same  time  employing  that  labour 
in  the  production  of  articles  for  which  the  demand  is  uncertain,  there  is 
no  doubt,  that,  at  times,  a  permanent  provision  for  the  poor  must  be  ex- 
tremely burthensome  on  the  community;  and  in  such  a  country,  an 
establishment  to  provide  labour  for  all  those  whom  the  vicissitudes  of 
trade  should  throw  out  of  employment,  would  be,  perhaps,  impractica- 
ble, and  certainly  very  difficult  of  execution.  But  besides  its  inappli- 
cability to  a  different  state  of  society,  the  argument  is  founded  on  the 
false  principle,  that  the  moral  obligation  of  charity  in  individuals, 
whether  related  to  the  pauper  or  not,  is  superior  in  degree,  as  well  as 
prior  in  the  time  of  its  exercise,  to  that  social  duty  which  every  nation 
owes  to  the  individuals  which  compose  it;  which  duty  is  not  only  pro- 
tection, but  mutual  support.  That  society  owes  protection  to  all  its 
members,  is  not  denied.  But  what  is  that  protection  ?  Certainly  its 

(a)  ID  the  year  1821,  the  poor-rates  were  7,325,61H  ;  the  income  72,811,86$ ;  the  number 
of  paupers  2,493,423  ;  and  the  whole  population  12,218,500. 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  321 

chief  object  is  life;  but  whether  life  be  assailed  by  the  sword  or  by 
famine,  it  is  equally  important  for  the  individual,  and  for  the  commu- 
nity too,  that  it  should  be  preserved.  There  are  mutual  obligations 
between  society  and  the  members  who  compose  it,  which  are  not  writ- 
ten covenants;  they  result  from  the  nature  of  the  connexion,  from  the 
object  to  be  attained  by  the  association,  which  is  the  protection  of  life 
and  property.  But  the  preservation  of  life  is  the  first  object,  property 
is  only  a  secondary  one;  and  if  a  contract  is  to  be  supposed,  can  it  be 
imagined  to  be  of  a  nature  that  would  impose  on  any  one  of  the  con- 
tracting parties  the  loss  of  that  which  it  was  the  chief  end  of  the  con- 
tract to  preserve  ;  and  that  too  for  the  preservation  to  the  others  of  a 
portion  of  that  which  was  only  the  secondary  object  ?  In  other  words, 
can  it  be  supposed  that  any  just  contract  could  stipulate  that  one  of  the  con- 
tracting parties  should  die  of  hunger,  in  order  that  the  others  might  enjoy, 
without  deduction,  the  whole  of  their  property  ?  The  obligation,  then, 
if  derived  from  the  only  source  to  which  we  can  look  for  its  conditions, 
includes  support  as  well  as  protection ;  and  although  this  obligation  may, 
by  the  operation  of  positive  law,  be  justly  modified  by  imposing  the 
burthen  of  support  on  relations  capable  by  their  fortune  of  supporting 
it,  yet,  whenever  these  means  are  either  deficient,  or  have  not  been 
provided,  the  duty  returns  in  its  full  force  upon  the  community. 

That  this  duty  is  sometimes  very  onerous,  cannot  be  denied.  A  re- 
dundant population,  by  which  I  mean  more  people  than  can  be  so  em- 
ployed as  to  earn  their  subsistence,  is  a  cause  of  this  evil,  that  can  only 
be  avoided  by  emigration,  when  it  is  the  result  of  a  natural  increase  ; 
but  generally  it  is  the  effect  of  false  principles  in  political  economy  ; 
of  that  system  which,  by  premiums  and  duties,  pampers  one  branch  of 
industry  into  an  unnatural  growth,  and  seduces  so  many  to  pursue  it, 
that  the  market  is  soon  overstocked  with  the  proceeds  of  their  labour, 
and  they  are  then  left  to  starve,  or  become  the  objects  of  public  charity. 
A  temporary  foreign  demand  may  also  have  the  same  effect ;  but,  in 
that  case,  the  community,  which  must  have  been  enriched  by  the  effects 
of  that  demand,  will  be  better  able  to  bear  the  burthen,  and  ought  not 
to  complain  that  it  is  forced  to  give  occasional  support  to  the  unfortu- 
nate instruments  of  its  prosperity.  But,  in  a  country  where  the  ordi- 
nary price  of  labour  is  more  than  sufficient  for  maintenance  of  the  poor, 
they  can  only  be  a  serious  burthen  in  consequence  of  the  want  of  true 
principles,  or  a  good  system  of  enforcing  them,  and  the  whole  secret 
lies  in  the  finding  employment  adapted  to  every  applicant  for  relief. 
The  number  of  those  who  are  incapable  in  any  degree  of  contributing 
by  labour  to  their  own  support,  is  very  small  ;  and  it  is  evident  that, 
when  none  are  idle,  the  cost  to  the  state  will  be  only  equal  to  the  differ- 
ence between  the  proceeds  of  such  labour  and  the  expense  of  support; 
but  the  proceeds  of  ordinary  labour  are  supposed,  by  the  state  of  society, 
to  be  more  than  sufficient  for  maintenance  ;  therefore,  making  all  pro- 
per deductions  for  forced  labour,  and  the  other  disadvantages  of  public 
institutions,  the  proceeds  of  labour,  then,  if  they  are  properly  conducted, 
will  not  fall  so  far  short  of  the  expense  as  to  create  any  fear  of  the 
ruinous  consequences  which  attend  the  increase  of  the  poor-rates  in 
England. 

At  present,  the  duty  of  supporting  needy  relations  is,  by  the  law  as 
well  of  England  as  of  the  different  united  states,  confined  to  ascend- 
ants and  descendants  only.     To  extend  this  obligation,  so  as  to  oblig 
2  Q 


322  INTRODUCTORY  REPORT  TO 

collaterals  within  the  second,  or  perhaps  the  third  degree,  to  contribute 
to  their  support,  would,  it  is  thought,  not  only  lessen  the  burthen  on 
the  public,  but  prevent,  by  the  advice  and  interference  of  friends, 
those  imprudent  engagements  which  are  the  principal  causes  of  poverty. 
Should  it  have  this  effect,  it  will  lessen  the  weight  of  the  objection 
that  a  public  provision  for  the  poor  will  increase  the  numbers,  by  ren- 
dering men  adventurous  in  speculation,  improvident  in  marriage,  and 
careless  in  the  conduct  of  their  affairs.  Most  of  the  writers  on  this 
subject,  state  that  this  effect  is  produced  by  the  poor  laws  of  England  ; 
but  it  would  seem  that  the  natural  love  of  independence,  and  the  sense  of 
degradation  inseparable  from  a  reliance  on  public  charity,  would  always 
prevent  this  provision  being  calculated  on  as  a  desirable  resource  ; 
and  we  might  rather  conclude  that  the  numbers  who  are  reduced  to 
this  extremity  by  extravagance,  would  have  been  equally  prodigal  if 
no  such  provision  had  existed.  However  this  may  be,  in  a  country 
where  the  sense  of  shame  is  deadened  by  misery  and  extensive  com- 
panionship in  its  degrading  effects,  and  where  support  is  afforded  with- 
out exacting  its  equivalent  in  labour,  it  is  believed  that  nothing  of  this 
nature  need  to  be  apprehended,  in  one  where  the  natural  repugnance  to 
live  on  charity  is  strengthened  by  the  ease  with  which  labour  can  pro- 
cure not  only  support,  but  competence  and  ease  ;  and  where  the  re- 
lief that  it  is  proposed  to  afford,  can  only  be  procured  by  bodily  exer- 
tions proportioned  to  the  ability  of  the  party.  Such  are  the  reasonings 
and  facts  on  which  I  have  ventured  to  propose,  as  part  of  my  plan,  the 
house  of  refuge  and  of  industry.  I  deem  it  a  most  essential  part  of 
the  system.  As  prevention,  in  the  diseases  of  the  body,  is  less  pain- 
ful, less  expensive,  and  more  efficacious  than  the  most  skilful  cure  ; 
so,  in  the  moral  maladies  of  society,  to  arrest  the  vicious  before  the 
profligacy  assumes  the  shape  of  crime  ;  to  take  away  from  the  poor 
the  cause  or  pretence  of  relieving  themselves  by  fraud  or  by  theft  ;  to 
reform  them  by  education,  and  make  their  own  industry  contribute  to 
their  support,  although  difficult  and  expensive  ;  will  be  found  more 
effectual  in  the  suppression  of  offences,  and  more  economical,  than  the 
best  organized  system  of  punishment.  An  offence  perpetrated,  incurs 
the  loss  sustained  by  its  commission,  and  frequently  that  of  its  repe- 
tion  added  to  the  expense  of  its  punishment.  To  prevent  an  offence 
requires  only  the  previous  expense  of  education  and  confinement. 
These  reasons  have  induced  me  to  suggest  the  plan  of  general  educa- 
tion, and  to  combine  with  the  system  I  offer,  establishments  for  the 
relief  of  paupers,  and  the  seclusion  and  instruction  of  the  vicious  and 
idle.  These  institutions,  although  they  may  conveniently  be  placed 
under  the  immediate  direction  of  the  same  superintendent,  are  essen- 
tially different  in  their  character  :  the  one  is  a  prison,  the  other  a 
place  of  refuge.  The  object  of  one  is  instruction,  of  the  other  relief: 
education  and  industry  are  ends  common  to  both.  Therefore,  the 
regulations  for  the  one  prescribe  strict  seclusion  and  coerced  labour, 
while  the  confinement  and  classification  of  the  other  is  merely  such  as 
is  necessary  for  the  maintenance  of  order  ;  and  the  only  penalty  for 
idleness  is  discharge,  with  the  certainty  of  being  classed  in  the  next 
application  for  relief  with  those  who  are  wilfully  idle.  The  great  ob- 
jection usually  made  to  establishments  of  this  kind,  is  the  expense. 
This,  in  a  great  measure,  will  be  obviated  by  a  wise  and  prudent 
administration,  by  which  labour,  suited  to  every  degree  of  strength 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  323 

and  skill  may  be  provided.  In  our  country  there  are  great  facilities 
for  this  :  gardening,  poultry  yards,  and  the  different  occupations  of 
agriculture  necessary  for  the  supply  of  a  large  city,  offer  employments 
of  the  most  healthful  kind,  and  in  which  some  occupation  suited  to 
every  individual  may  be  found.  Add  to  these,  a  brick  or  tile  yard, 
a  rope  walk,  chair  making,  all  the  manufactures  of  straw,  cotton  spin- 
ning, weaving,  and  other  manufactures,  of  which  more  particular 
mention  will  be  made  when  we  speak  of  the  penitentiary  ;  and  it  will 
be  seen  that,  by  proper  management,  means  will  be  found  to  employ 
all  the  tenants  of  this  establishment,  whether  in  the  seclusion  of  the 
house  of  industry,  or  the  more  relaxed  discipline  of  the  house  of  re- 
fuge :  few  are  so  weak  and  infirm  as  to  contribute  nothing  towards 
their  support ;  and  the  great  object  will  be  that  there  shall  be  no  idle- 
ness that  is  not  the  effect  of  infirmity.  By  these  means,  the  actual  ex- 
pense will  be  much  lessened,  and  the  comparative  account  truly  stated, 
between  the  cost  of  suffering  them  to  live  in  idleness  by  contributions 
levied  upon  private  or  public  charity,  or  depredations  upon  property, 
and  the  expense  of  this  establishment  will  show  a  balance  greatly  in 
its  favour. 

We  are  come  to  that  part  of  the  system  of  prison  discipline  applica- 
ble to  penal  law,  in  that  restricted  sense  which  confines  it  to  the  prose- 
cution and  punishment  of  offences.  In  the  project  which  I  submit  to 
the  legislature,  I  begin  with  a  part  of  the  subject  that  has  generally 
been  most  unaccountably,  most  injuriously  neglected.  The  danger  of 
vicious  association  is  universally  acknowledged  ;  its  corrupting  influ- 
ence has  been  pourtrayed  by  every  figure  that  rhetoric  could  supply, 
and  enforced  by  the  most  energetic  language  of  eloquence  ;  but  its 
deleterious  effects  seem  to  be  feared  only  after  condemnation,  and  no 
efficient  plan  has  hitherto  been  adopted,  or,  as  far  as  I  am  informed, 
proposed  to  any  legislature,  to  apply  a  corrective  to  it  in  the  incipient 
stages  of  criminal  procedure,  lifet  here,  emphatically,  it  is  calculated 
more  widely  to  spread  its  infection.  After  condemnation  there  can  be 
no  association  but  of  the  guilty  with  the  guilty  ;  but  in  the  prelimi- 
nary imprisonment,  guilt  is  associated  with  innocence.  The  youth  who 
is  confined  on  suspicion  only,  whose  innocence  at  the  time  of  his  ar- 
rest is  attested  by  his  subsequent  acquittal,  leaves  the  den  where  he 
was  imprisoned,  with  tainted  morals,  depraved  habits,  passions  excited 
to  vengeance,  and  fit  associates  to  aid  him  in  pursuits  that  makes  his 
second  entrance  to  the  house  of  detention  only  a  passage  to  the  peni- 
tentiary, or,  in  our  present  system,  to  the  gallows.  In  our  great  cities, 
where  this  reform  is  most  necessary,  it  seems  least  attended  to.  Vices 
the  most  disgusting,  brutal  intemperance,  crime  in  its  most  hideous 
and  appalling  forms,  are  there  congregated,  and  form  a  mass  of  cor- 
ruption, rendered  more  deleterious  from  the  mixture  of  imported  de- 
pravity and  native  profligacy  of  which  it  is  composed.  The  bridewell 
of  a  large  city  is  the  place  in  which  those  representatives  of  human  na- 
ture, in  its  most  degraded  shape,  are  assembled  ;  brought  into  close 
contact,  so  that  no  art  of  fraud,  no  means  of  depredation,  no  shift  to 
avoid  detection,  known  to  one,  may  be  hid  from  the  other ;  where 
those  who  have  escaped  receive  the  applause  due  to  their  dexterity, 
and  he  who  has  suffered,  glories  in  the  constancy  with  which  he  has 
endured  his  punishment,  and  resisted  the  attempts  to  reform  him. 
Here,  he  who  can  "  commit  the  oldest  crime  the  newest  sort  of  way," 


324  INTRODUCTORY  REPORT  TO 

is  hailed  as  a  genius  of  superior  order,  and  having  no  interest  to  secure 
the  exclusive  use  of  the  discovery,  he  freely  imparts  it  to  his  less  in- 
structed companions.  Thieves,  and  all  the  other  offenders  whose  crimes 
are  committed  upon  property,  here  receive  the  most  useful  instructions, 
not  only  for  perfecting  themselves  in  their  vocation,  but  of  the  proper 
objects  on  which  it  may  be  exercised;  and  the  comparatively  short  de- 
tention of  a  large  majority,  gives  them  the  means  of  immediately  prac- 
tising the  lessons  they  have  received:  for  it  may  be  fairly  calculated 
that,  of  those  committed  for  trial,  three-fourths(a)  escape  conviction 
after  being  detained  just  long  enough  to  receive  instruction  in  all  the 
mysteries  of  crime.  This  view  of  the  danger  of  increasing  guilt,  by 
communication  between  the  guilty  in  different  degrees,  has  been  often 
considered,  and  is  in  a  great  degree  applicable  to  the  association  of  con- 
victs in  a  penitentiary  as  well  as  in  those  prisons  we  are  now  consider- 
ing. But,  when  we  add  to  it  the  serious  consideration  that  innocence 
and  youth  are  at  all  times  exposed  to  this  contaminating  influence;  that 
laws  which  profess  to  preserve  the  morals  and  purity  of  the  citizen,  are 

(a)  In  New  York,  in  the  year  1822,  (here  were  committed  to  the  bri Jewell  prison,  on  ac- 
cusations for  crimes  and  misdemeanors,  2361   persons.     Of  these,  fewer   than  541  were 
brought  to  trial,  for  that  is  the  whole  number  of  persons  tried,  including  those  who  were  not 
committed  but  bailed  ;  of  these  541, 130  were  acquitted  ;  which  produces  this  result. 
Commilted  for  trial,  2361 

Convicted,  361 

Discharged  or  acquitted,  2000 

In  1S23,  were  committed,  1928 

The  whole  number  tried  that  year  was  599,  of  whom  177  were  acquitted,  so 

that  the  number  of  those  convicted  was  422 


Total  discharged  or  acquitted,  1606 

In  1824,  committed,  1961 

Tried  586,  acquitted  169,  convicted,  4174 

Total  discharged  or  acquitted,  1544 

In  1825,  committed,  2168 

Tried  547,  acquitted  161,  convicted,  386 

Total  discharged  or  acquitted,  1782 

In  1826,  there  were  committed,  to  the  20th  November,  2046 

Add  in  the  same  proportion  for  the  rest  of  the  year,  227 

2273 

Tried  662,  acquitted  200,  convicted,  462 


Total  discharged  or  acquitted,  1811 

This  is  sufficient  to  show  that,  in  every  year  in  one  of  our  cities,  from  1500  to  2000  per- 
sons of  both  sexes,  all  of  whom  are  legally  presumed  to  be  innocent,  and  a  large  proportion 
must  be  really  so,  are  annually  forced,  by  the  operation  of  the  laws,  into  the  closest  associa- 
tion with  the  most  abandoned  of  their  species ;  they  must  eat,  drink  and  sleep  with  them. 
They  have  no  retreat  from  the  infectious  atmosphere  of  their  society ;  and,  after  having  been 
thus  forced  to  enter  the  school  of  vice  and  criminality,  the  2000  disciples  are  turned  out  to 
practise  the  lessons  they  have  learned!  And  this  is  the  wise  system  of  laws  that  needs  no 
amendment !  This  is  the  humane  administration  of  them  in  a  rich  and  enlightened  city  ! 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  325 

made  the  instruments  of  their  destruction  ;  what  expression  can  be  too 
strong  to  mark  our  astonishment  at  the  apathy  or  indolence  of  legislators, 
who,  knowing  the  evils  of  the  system,  can  suffer  it  to  continue,  or  who 
will  not  take  the  trouble  to  inform  themselves  on  the  subject  ?     Indis- 
criminate confinement,  preparatory  to  the  trial,  has,  in  this  report,  hither- 
to been  considered  only  in  its  contaminating  effects  ;  and  those  effects 
are  sufficiently  dreadful.     But  there  is  another  view  of  its  consequences, 
its  inevitable  consequences,  which  not  only  shocks  the  understanding, 
but  lacerates  the  best  feelings  of  the  heart.     The  only  discrimination 
made  between  the  white  tenants  of  these  places  of  confinement  is  that 
of  the  sexes.     The  women  are  kept  in  a  separate  apartment,  the  men 
in  as  many  others  as  the  prison  can  afford,  but  without  any  distinction 
between  them.     The  innocent  stranger,  unable  to  find  security,  is  joint 
tenant  of  the  same  chambers  with  three  times  convicted  convicts  ;   va- 
grants sunk  in  vice,  and  brutified  by  intoxication;  perpetrators  of  every 
infamous  crime,  and  even  with  murderers  taken  in  the  fact.     Women 
of  innocence  and  virtue  are  sometimes  forced,  by  this  unhallowed  ad- 
ministration of  justice,  into  an  association  with  all  that  is  disgusting  in 
female  vice  ;  with  vulgarity  in  its  most  offensive  form  ;  with  intempe- 
rance sunk  to  the  lowest  depth  of  degradation  ;  with  every  thing  that 
can  be  conceived  most  abhorrent   to   female  delicacy  and  refinement. 
This  is  no  picture  of  the  imagination  :  the  reporter  has  seen  it.     It  is 
realized  in  a  greater  or  less  degree  in  all  the  cities  of  the  Atlantic  states: 
and  even  legislators,  patriotic  statesmen,  and  benevolent  philanthropists, 
who  have  for  years  been  legislating,  and  reasoning,  and  devoting  their 
time  and  talents  to  the  application  of  solitary  imprisonment  to  the  pur- 
poses of  punishment  after  conviction,  have  never  yet  taken  one  efficient 
step  to  prevent  the  demoralizing  effects  attending  indiscriminate  associ- 
ation before  trial,  or  to  rescue  the  innocent  not  only  from  the  infection 
of  such  society,  but  from  the  punishment  it  inflicts.     For  what  greater 
punishment  could  be  devised  for  a  man  of  education  and  morals,  used 
to  the  refinements  of  good  society,  than  to  shut  him  up  night  and  day, 
for  weeks  and  months,  in  a  room  crowded  with  the  vilest  of  the  vile,  with 
men  stained  with  every  crime  ?  or  to  a  woman,  not  sunk  herself  in  vice, 
to  be  associated  with  the  most  abandoned  of  her  sex  ?     Yet  such  is  the 
humanity,  the  justice  of  our  boasted  jurisprudence.     We  begin  by  in- 
flicting this  moral  punishment  on  one  presumed,  by  the  first  principle 
of  our  law,  to  be  innocent  :  we  add  to  it  the  physical  evil  of  close  con- 
finement, without  any  of  the  conveniences  of  life,  for  an  unlimited 
period  ;  and  when  perhaps  his  morals  are  corrupted  by  the  society 
which  the  justice  of  his  country  has  forced  him  to  keep,  and  his  health 
is  destroyed  by  the  rigourof  imprisonment,  his  innocence  is  declared,  and 
he  is  restored  to  society  either  to  prey  upon  it  by  his  crimes,  or  burthen 
it  by  his  poverty.  What  greater  moral  or  physical  evil,  it  may  be  asked, 
would  have  been  inflicted  on  the  guilty,  than  this  which  the  innocent  is 
made  to  suffer  ?    An  eye  witness  to  more  than  one  of  the  scenes  he  has 
described,  and  which,  he  repeats,  are  not  exaggerated  in  the  description, 
the  reporter  was  deeply  impressed  with  the  necessity  of  a  radical  reform 
in  the  system  of  detention  before  trial,  and  has  embodied  it  in  the  code 
which  he  presents.     Persons  whose  liberty,   for  the  good  of  society, 
must  be  restrained,  are  either  those  upon  whom  imprisonment  is  im- 
posed merely  for  the  purpose  of  securing  their  appearance  when  the 


326  INTRODUCTORY  REPORT  TO 

purposes  of  justice  require  it,  or  those  upon  whom  it  is  inflicted  as  a 
punishment. 

The  detention  of  those  of  the  first  description,  to  be  just,  must  not 
only  be  necessary,  but  must  be  attended  with  no  privation  that  is  not 
absolutely  required  for  the  end  proposed,  and  for  the  preservation  of 
order. 

Each  of  these  two  divisions  is  composed  of  several  subordinate  classes, 
for  the  government  of  which  different  rules  are  necessary.  None  are 
comprehended  in  the  first,  who  are  able  to  find  a  sufficient  pledge  that 
their  personal  attendance  will  be  given  when  it  is  called  for.  The  pur- 
poses of  the  projected  code  require,  that  those  comprising  this  division 
should  form  three  classes. 

1.  Persons  whose  testimony  is  necessary  for  the  investigation  of  some 
important  charge. 

2.  Those  accused  of  misdemeanor. 

3.  Those  charged  with  crime. 

The  first  of  these  classes  is  separated  from  the  two  others  by  an  evi- 
dently marked  distinction.  Those  who  compose  it  are  not  presumed 
to  be  guilty  of  any  offence  ;  the  temporary  privation  of  their  liberty  is 
a  necessary  sacrifice  for  the  safety  of  society  ;  it  is  taken  on  the  same 
principle  that  justifies  the  appropriation  of  private  property  for  public 
purposes,  and  it  carries  with  it  the  same  right  of  indemnity  ;  which 
indemnity  the  code  does  not  fail  to  provide. 

With  respect  to  the  two  other  classes,  there  is  this  difference,  that, 
in  these,  there  is  a  presumption  of  guilt,  arising  from  an  accusation  on 
oath.  The  maxim,  that  every  man  is  presumed  innocent  before  con- 
viction, is,  like  many  other  legal  maxims,  true  only  to  a  certain  extent. 
In  its  application,  it  can  mean  only  that  proof  must  precede  conviction, 
and  that  accusation  alone  is  not  one  of  those  presumptions  which  throws 
the  burthen  of  proof  on  the  accused,  and  cause  him  to  be  believed  guilty, 
unless  he  shows  himself  innocent.  But  it  is  not  true  as  respects  per- 
sons accused  on  oath  in  a  legal  form.  This  is  sufficient  to  justify  every 
measure  for  securing  the  person,  because  it  creates  such  a  presumption 
of  guilt  as  raises  a  probability  of  an  attempt  to  escape  punishment,  and 
on  the  degree  of  this  probability  is  founded  the  distinction  between  the 
second  and  third  classes:  the  motive  to  attempt  an  escape  being  greater, 
in  proportion  to  the  magnitude  of  the  punishment.  For  these  reasons, 
the  code  directs  that  prisoners  of  the  first  class,  to  whom  no  offence  is 
imputed,  shall  enjoy  every  alleviation  of  their  misfortune,  not  incom- 
patible with  the  maintenance  of  order,  that  their  own  means  can  pro- 
cure. The  second  class  being  accused  of  an  offence,  punishable  when 
proved,  by  a  comparatively  light  penalty,  neither  the  temptation  to 
escape,  nor  the  evil  consequences  to  society,  should  it  be  effected,  are 
so  great  as  to  justify  a  rigour  of  confinement  equal  to  that  which  is  necess- 
ary to  secure  the  third  class,  accused  of  crime.  These  degrees  are 
distinctly  marked  in  the  code,  but  it  carefully  provides  that  none  of  those 
comprehended  in  this  division,  shall  suffer  any  other  inconveniences 
from  their  detention,  than  those  necessary  to  secure  their  personal  ap- 
pearance, and  to  prevent  the  evil  association,  no  less  requisite  to  pro- 
tect their  own  morals  against  the  contagion  of  vice,  for  this  classification 
s  essential  to  the  other  and  no  less  important  design,  which  has  been 
before  stated  in  this  report,  that  of  separating  the  persons  composing 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  327 

the  two  first  classes  from  any  communication  with  those  of  the  third, 
and  the  individuals  of  this  last  from  any  intercourse  with  each  other. 
The  presumption,  before  alluded  to,  also  justifies  this  measure.  It  is 
one  of  protection,  from  which  the  innocent  have  every  thing  to  gain, 
and  of  which  the  guilty  cannot  complain:  for  it  imposes  no  unnecessary 
restraint,  and  takes  from  them  only  the  power  of  corrupting  and  being 
further  corrupted.  The  danger  of  guilty  associations;  the  duty  of 
avoiding  them  by  a  careful  separation  of  the  innocent  from  those  who 
labour  under  a  presumption  of  guilt;  of  those  accused  or  convicted  of 
offences,  implying  no  great  degree  of  moral  turpitude,  from  those  who 
are  presumed  or  known  to  be  guilty  of  crimes  which  evince  depravity 
of  mind  and  manners;  of  the  young  from  the  old  offender;  are  considera- 
tions on  which  the  Code  of  Prison  Discipline  rests  ;  and  on  the  Code  of 
Prison  Discipline  depends  the  whole  system  of  penal  law.  It  is  for  this 
reason  that  classification  before  trial  has  been  provided  for  with  the 
same  care  that  is  required  after  conviction;  and  it  has  been  particularly 
urged  in  the  report,  from  a  conviction  that  its  importance  in  penal  juris- 
prudence has  not  hitherto  been  properly  appreciated.  It  is  proposed, 
not  only  that  the  place  for  this  confinement  shall  be  separate  from  that 
in  which  it  is  inflicted  as  a  punishment,  but  it  is  called,  not  a  prison, 
but  a  HOUSE  OF  DETENTION  merely,  that  the  name  may  not  carry  with 
it  any  idea  of  infamous  punishment.  The  marked  distinction  in  the 
penal  code,  between  crimes  and  misdemeanors;  the  degree  of  moral 
guilt  in  the  former,  with  which  the  latter  is,  for  the  most  part,  not  in- 
fected ;  renders  a  correspondent  difference  necessary  in  the  plan  and 
nature  of  the  punishment  inflicted  on  them  respectively. 

After  considering  imprisonment  as  a  necessary  restraint  merely,  the 
only  just  character  which,  before  trial,  it  can  have,  and  showing  the 
provisions  in  the  Code  of  Prison  Discipline  adapted  to  this  end,  it  re- 
mains to  be  considered  in  its  double  capacity,  as  a  punishment  and  the 
means  of  reform. 

The  nature,  properties  and  efficacy,  of  imprisonment,  as  a  means  of 
punishment,  have  been  so  fully  discussed  in  the  Introductory  Report  to 
the  Code  of  Crimes  and  Punishments,  that  no  more  will  be  said  here 
than  is  necessary  to  elucidate  its  modifications  and  combinations  with 
the  reformatory  part  of  the  plan. 

Of  imprisonment,  the  Code  of  Crimes  and  Punishments  directs  four 
grades  :  simple  imprisonment,  simple  imprisonment  in  close  custody, 
imprisonment  with  labour,  and  imprisonment  in  solitude. 

The  two  first  are  applied  to  offences  involving  no  great  degree  of 
moral  wrong,  and  therefore  ought  not  to  be  confounded  with  others  in 
which  depravity  is  apparent.  Some  loss  of  reputation,  when  the  laws 
are  just  and  impartially  administered,  necessarily  is  incurred  by  the  in- 
fliction of  every  punishment.  But  disgrace  ought  to  be  attached  to  those 
only  which  are  inflicted  for  crimes  implying  moral  depravity.  Hence 
the  distinction  which  the  law  has  drawn,  and  which  the  Code  of  Prison 
Discipline  must  execute,  between  misdemeanors  and  crimes.  To  mark 
this  distinction,  different  places,  as  well  as  a  difference  of  treatment,  are 
necessary. 

It  would  be  approximating  these  degrees  of  offence  too  closely,  to 
commit  to  the  same  prison  the  criminal  and  the  misdemeanant.  A  man 
of  worth  and  integrity  may  be  guilty  of  breaking  the  provisions  of  mere 
positive  law;  but  it  would  be  confounding  all  ideas  of  proportion  in 


328  INTRODUCTORY  REPORT  TO 

punishment  to  conduct  him  to  the  same  prison  with  the  thief  or  assassin. 
A  department,  therefore,  in  the  house  of  detention  is  designated  for  of- 
fenders of  this  description,  whether  the  sentence  be  simple  confinement 
or  imprisonment  in  close  custody.  The  discipline  applicable  to  them 
is  also  necessarily  different  from  that  required  in  the  penitentiary  :  as 
no  great  moral  guilt  is  implied  in  the  offences  of  which  they  have  been 
guilty,  and  the  detention  is  limited  to  short  periods,  so  the  imprison- 
ment is  intended  more  for  punishment  than  reformation.  In  this,  as  in 
all  other  places  of  confinement,  under  this  system,  complete  separation 
at  night  is  strictly  enforced  ;  the  means  of  education  and  religious  in- 
struction are  provided;  seclusion  is  graduated  according  to  the  sentence; 
good  wholesome  food  and  comfortable  lodging  are  provided  at  the  public 
expense  ;  labour  is  permitted  but  never  enforced  ;  vicious  associations 
precluded,  but  close  confinement  never  resorted  to  but  when  directed 
by  the  judgment,  or  rendered  necessary  to  preserve  the  order  of  the  pri- 
son. The  distinction  between  simple  imprisonment  and  confinement  in 
close  custody,  is  sufficiently  explained  in  the  Code  of  Crimes  and  Pun- 
ishments; and  the  precise  rules  laid  down  in  the  Code  of  Prison  Discipline 
for  the  treatment  of  prisoners  under  these  punishments  is  calculated  to 
prevent  oppression,  on  the  one  hand,  and  on  the  other,  strictly  to  enforce 
the  execution  of  the  sentence.  How  different  in  its  very  nature!  How 
infinitely  so  in  its  effects,  is  imprisonment,  under  these  regulations,  from 
the  same  punishment  as  usually  inflicted  for  slight  offences!  The  hor- 
rors of  a  bridewell  have  been  faintly  described,  yet  it  is  such  that  the 
misdemeanor  under  the  present  system,  in  most  of  the  states,  is  com- 
mitted, to  pass  the  period  of  his  confinement  without  labour  or  instruc- 
tion; and  either  in  the  congenial  association  with  vulgarity  and  vice  to 
forget  that  he  is  in  a  place  of  punishment,  or,  shrinking  from  their  ab- 
horred contact,  to  find  the  physical  evil  of  imprisonment  increased  be- 
yond calculation  by  a  moral  evil  which  is  inflicted  without  being 
ordained  by  the  law:  whereas,  on  the  plan  I  propose,  no  greater  evil 
being  suffered  than  precisely  that  directed  by  the  sentence,  and  nothing 
left  to  the  discretion  of  turnkeys  or  keepers,  the  judge  is  enabled,  with 
a  precision  before  impossible,  to  apportion  the  punishment  to  the  offence. 
Heretofore,  however  slight  the  infraction  of  law  that  involved  the  pen- 
alty of  confinement,  an  indefinite  evil  of  bad  association  was  necessarily 
annexed  to  it:  and  if  a  respectable  man,  for  an  imprudent  breach  of  the 
peace,  or  for  intemperate  expression  in  court,  should  be  committed  to 
prison  for  a  few  days,  it  depended  on  the  accidental  circumstance  of  the 
numbers  in  the  bridewell,  and  sometimes  on  the  disposition  of  the 
keeper,  or,  what  is  worse,  on  the  wealth  of  the  party,  to  determine 
whether  he  should  pass  those  days  in  a  comfortable  apartment,  making 
merry  with  his  friends,  or  should  drag  them  on  in  the  society  of  felons. 
Now,  the  magistrate  will  know  the  extent  of  the  punishment  he  awards. 
Simple  imprisonment  is  defined,  its  privations,  its  indulgences,  the 
penalties  attending  the  abuse  of  them  ;  every  thing  is  accurately 
marked.  Within  certain  limits  traced  by  the  law,  these  indulgences 
may  be  restricted  or  enlarged  by  the  judge,  not  by  the  jailer;  according 
to  the  circumstances  of  the  offence,  not  according  to  the  caprice  of  a 
turnkey,  or  the  capacity  of  the  prisoner  to  purchase  his  favour.  And 
simple  imprisonment,  the  lowest  grade  of  corporal  punishment,  formerly 
an  engine  of  torture  to  some,  to  others  a  mockery  of  justice,  to  all  the 
means  of  depraved  and  depraving  associations,  becomes,  in  the  hands  of 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  329 

a  discreet  judge,  an  elastic  instrument  of  coercion  that  may  be  made  to 
press  on  the  smallest  transgressions,  or  expand  to  fit  the  highest  misde- 
meanor to  which  it  is  applied. 

Imprisonment  in  close  custody  is  the  next  grade;  and  here  the  same 
strict  rules  to  limit  the  discretion  of  the  keeper,  are  applied.  In  all  the 
provisions  of  this  code  the  great  truth  is  never  lost  sight  of,  that  every 
evil  inflicted,  beyond  that  which  is  necessarily  included  in  the  sentence, 
is  illegal,  is  cruel,  is  tyrannical.  Hence  the  care  in  the  codes  that  are 
submitted,  first,  to  make  the  judge  confine  himself  in  his  sentence  strictly 
within  the  limits  of  the  discretion  that  is  given  him,  and  to  exercise  that 
discretion  as  much  as  possible  by  the  application  of  the  general  rules  that 
are  prescribed  to  guide  his  judgment ;  and  afterwards,  when  he  has  pro- 
nounced, to  take  away  all  other  discretion  that  might  alleviate,  increase, 
or  in  any  manner  alter  the  punishment,  except  in  the  cases  specially 
provided  for.  In  the  case  of  simple  imprisonment  in  close  custody, 
these  rules  and  exceptions,  it  is  thought,  will  be  found  to  answer  these 
ends.  This  grade  of  punishment  is  the  last  and  highest  of  those  inflict- 
ed for  misdemeanors  ;  as  it  is  intended  by  the  Code  of  Crimes  and 
Punishments  to  approach  the  severity,  but  not  to  be  attended  with  the 
degradation  of  penitentiary  confinement  in  solitude,  so  the  Code  of 
Prison  Discipline,  to  give  effect  to  this  distinction,  has  prescribed  a  treat- 
ment that  should  mark,  both  to  the  sufferer  and  to  others,  that  although 
the  law  punished  his  act  as  an  offence,  and  doomed  him  to  a  prison  for 
punishment,  and  to  solitude  and  reflection  for  repentance,  yet  it  does 
not  confound  his  offence  with  those  which,  by  the  general  consent  of 
the  civilized  world,  has  been  characterized  as  infamous.  This  important 
distinction,  fully  discussed  in  the  preliminary  report  to  the  former 
Code,  is  referred  to  here,  only  to  mark  the  reason  of  the  different  places 
assigned  to  these  two  species  of  close  custody,  and  to  account  for  the 
different  discipline  by  which  they  are  respectively  regulated. 

We  come  now  to  the  beaten  ground  of  penitentiary  discipline.  The 
first  remark  necessary  to  explain  the  nature  of  that  system  1  have  ven- 
tured to  recommend  is  this:  that  the  penal  code  assigns  this  punishment 
to  no  offences  but  such  as  suppose  in  the  offender  a  depravity  and  cor- 
ruption of  mind  which  requires  the  application  of  reformatory  discipline 
as  well  as  punishment — they  must  not  be  separated.  And  with  the 
respect  due  to  the  great  writers  who  have  devoted  their  talents  to  this 
interesting  subject,  it  may  be  permitted  perhaps  to  suggest,  that  most 
of  them  err  in  considering  the  true  end  of  penal  laws  to  be  either  punish- 
ment alone,  or  reformation  alone.  A  good  system  must  combine  them: 
and  the  great  excellence  of  the  penitentiary  plan  is,  that  the  process 
of  reformation  cannot  be  carried  on  but  by  privations  and  sufferings 
which,  if  they  do  not  succeed  so  as  to  reform,  must  necessarily  deter 
from  a  repetition  of  crime  in  as  great  a  degree  as  any  other  bodily  in- 
fliction could.  If  the  reformation  is  complete,  we  have  the  double 
assurance  arising  from  the  moral  restraint  and  the  remembrance  of  the 
physical  as  well  as  mental  suffering.  As  an  example  to  deter  others, 
penitentiary  imprisonment  has  been  considered  to  be  defective  in  this, 
that  here  the  real  is  greater  than  the  apparent  suffering ;  whereas,  it 
ought  to  be  directly  the  reverse  ;  the  apparent  should  exceed  the  real 
pain  ;  because  the  object  of  deterring  others  would  be  attained  with  as 
little  injury  as  possible  to  the  sufferers — it  being  a  principle  that  no 
more  evil  than  is  necessary  to  produce  that  effect  ought  to  be  inflicted. 
2R 


330  INTRODUCTORY  REPORT  TO 

The  principle  is  true  when  modified  so  as  to  require  the  real  suffering 
to  be  sufficient  for  deterring  the  criminal  himself,  and  the  apparent  not 
to  be  so  great  as  to  shock  by  a  belief  that  it  is  cruel  or  disproportioned 
to  the  offence:  but  is  the  application  of  it  to  penitentiary  imprisonment 
well  made?  The  prisoner  is  not,  say  those  who  use  this  argument, 
always  exposed  to  view,  and,  when  he  is  seen,  his  appearance  may  not 
indicate  the  suffering  which  he  undergoes.  The  misery  of  a  restraint 
for  years,  perhaps  for  life,  cannot  show  itself  in  the  few  moments  of  a 
casual  visit;  he  appears  well  fed,  well  clothed,  and  the  labour  which  he 
is  seen  to  perform  is  moderate;  there  is  nothing  therefore  in  the  aspect 
of  the  man  to  show  the  wretchedness  that  must  be  created  by  a  whole 
life  doomed  to  forced  labour  and  degrading  subjection.  In  this  reason- 
ing, however,  we  lose  sight  of  two  operations;  the  one  going  on  in  the 
mind  of  the  convict,  the  other  in  that  of  the  man  upon  whom  his 
punishment  is  intended  to  be  as  an  example;  both  of  which  essentially 
lessen  the  force  of  this  objection.  By  the  first,  the  sufferer  becomes 
by  habit,  if  not  reconciled  to  his  punishment,  at  least  much  better  able 
to  bear  it.  Some  "strange  comfort"  finds  its  way  into  his  cell,  and 
illuminates  it  with  a  hope  which,  though  long  deferred,  does  not  al- 
ways sadden  the  heart:  employment  interrupts  uneasy  thoughts  during 
the  day,  and  produces  the  total  oblivion  of  them  by  sound  sleep  at 
night ;  and  the  misery  of  confinement  for  life,  spread  in  equal  propor- 
tions over  each  day,  is  so  much  less  in  any  particular  time,  that,  in 
many  cases,  the  apparent  is  greater  than  the  real  suffering  of  the  con- 
vict. On  the  other  hand,  he  who  is  tempted  to  offend,  and  may  be 
restrained  by  the  fear  of  punishment,  will  add  to  that  which  he  knows 
to  exist,  but  which  he  does  not  see,  all  those  horrors  by  which  mystery 
always  aggravates  apprehended  evils.  Circumstances,  too,  may  be  su- 
peradded,  to  strike  the  imagination  and  increase  this  effect,  without 
increasing  the  real  suffering  of  the  prisoner,  while  they  augment  its 
apparent  intensity.  Thus  imprisonment  even  tested  by  this  rule,  is  far 
from  being  so  inefficient  an  engine  of  punishment,  whether  considered 
as  the  means  of  deterring  the  offender  himself  or  others,  as  the  objection 
supposes.  And,  even  if  we  should  discard  the  idea  of  reformation, 
penitentiary  imprisonment  has  advantages  which  few  other  modes  of 
punishment  possess.  It  is  permanent ;  the  prison  is  always  seen  ;  and 
even  if  we  do  not  visit  its  gloomy  cells,  the  imagination  will  people 
them  with  tenants  of  its  own  creation,  more  squalid  in  appearance  and 
hopeless  and  dejected  in  mind,  than  the  real  culprits  who  inhabit  them; 
these  too  will  have  enough  of  suffering  (discarding  any  but  that  au- 
thorized by  law),  to  leave  a  lasting  impression,  and  to  prevent,  if  any 
thing  short  of  reformation  can  prevent,  a  repetition  of  guilt.  What- 
ever advantages  penitentiary  imprisonment,  however,  may  possess  as 
a  punishment,  it  is  certain  that  all  punishments,  considered  merely  as 
such,  have  failed  in  preventing  offences;  and  the  severest  have  always, 
without  exception,  been  found  the  least  efficacious.  But,  if  punishment 
alone  is  inefficient,  the  reformation  of  the  offender,  if  it  were  possible 
to  effect  it  without  punishment,  would  be  so  in  the  same  or  a  greater 
degree  ;  the  reformation  of  one  offender  would  have  little  effect  on  his 
fellows,  unless  indeed  as  an  additional  inducement  to  proceed  :  but  to 
refute  this  argument  is  nugatory,  because  no  means  of  reformation  have 
been  proposed,  or  can  well  be  imagined,  that  can  be  applied  without 
imprisonment  or  other  restraint ;  but  imprisonment  or  restraint  is  an 


THE  CODE  OF  liEFOUM  AND  PRISON  DISCIPLINE.  331 

evil  to  the  sufferer,  and  all  evil  imposed  in  consequence  of  crime  is 
punishment:  all  reformatory  discipline  therefore  is  necessarily  con- 
nected with  punishment;  and  it  would,  but  for  one  consideration,  be 
investigating  the  truth  of  a  theory  inapplicable  to  the  subject  if  found 
to  be  true,  were  we  to  inquire  whether  reformation  ought  to  be  the 
sole  object  of  penitentiary  discipline.  The  consideration  which  alone 
renders  the  inquiry  proper,  and  at  the  same  time  highly  important,  is 
this  :  that  if  reformation  of  the  offender  be  the  only  object,  and  the  ex- 
ample of  the  punishment  is  not  to  be  considered,  then  the  endeavour 
in  establishing  a  mode  of  discipline  should  be  to  render  it  as  light  as 
possible,  consistent  with  the  end  to  be  attained,  which,  by  the  argu- 
ment, is  reformation  alone;  because  it  is  a  true  principle,  that  no  greater 
evil  ought  ever  to  be  inflicted  than  is  necessary  to  the  end  ;  and  there- 
lore,  if  some  legislator,  a  proselyte  to  this  doctrine,  should  believe  that 
mild  persuasion  and  indulgence  were  better  instruments  of  reformation 
than  coerced  labour  and  restraint,  and  should  act  on  this  belief,  the  ex- 
ample of  the  punishment  to  deter  would  be  lost ;  and  though  one  con- 
vict might  go  out  a  real  or  pretended  saint,  seven  sinners  would  pursue 
his  track  of  profligacy,  secure  that,  even  if  detected,  instead  of  punish- 
ment they  would  receive  only  advice  and  indulgence.  The  doctrine, 
therefore,  that  reformation  is  the  sole  end  of  penitentiary  punishment, 
deserves  to  be  examined.  If  it  mean  the  reformation  of  the  culprit, 
and  of  all  who  might  follow  his  example,  as  the  language  used  by  one 
of  its  advocates(a)  would  perhaps  justify  us  in  believing,  the  dispute 
is  one  only  of  words ;  for  if  the  punishment  of  one,  or  the  reformation 
of  one,  prevents  the  other  from  committing  the  crime,  it  must  be  because 
he  fears  the  evil  of  the  reformatory  discipline  ;  he  is  then  deterred  by 
the  example;  and  we  arrive  by  different  roads  to  the  same  point.  But, 
more  fairly  considered,  the  argument  is  this  :  crime  is  an  evil,  punish- 
ment is  an  evil;  to  punish,  therefore,  is  to  multiply  instead  of  diminish- 
ing it,  unless  it  will  deter  the  offender  as  well  as  others:  but  it  is  proved, 
by  long  experiment,  that  punishment  has  failed  in  this  effect:  therefore 
it  is  useless.  Again,  experience  has  proved  that  severe  are  much  less 
efficacious  than  milder  punishments  ;  it  is  fair,  then,  to  believe  that  the 
more  you  diminish  the  severity  of  your  laws,  the  more  efficacious  will 
be  their  operation:  and  by  one  consequence  further,  if  crimes  decrease 
in  the  same  ratio  with  the  severity  of  penalties,  that  it  is  not  the  penalty 
that  deters  ;  and  if  it  does  not  deter,  it  is  not  only  useless  but  wrong, 
because  we  set  out  with  the  incontrovertible  position  that  this  is  the 
only  legitimate  object  of  punishment :  if  crimes  have  been  diminished 
by  penitentiary  imprisonment,  then  it  could  not  have  been  the  punish- 
ment that  operated,  it  must  have  been  something  else,  and  that  some- 
thing should  be  the  great  object  to  keep  in  view — it  is  reformation. 

A  great  error  at  the  bottom  of  all  this  reasoning  is  one  already 
referred  to,  that  reformation  is  considered  abstractedly,  without  any 
consideration  of  the  means  by  which  it  is  to  be  brought  about,  which 
is  the  evil  or  the  punishment  of  seclusion,  and  which  is  inseparable 
from  it:  another  not  less  striking  is,  that,  supposing  reformation  effectu- 
ally to  prevent  a  repetition  of  the  crime  by  the  offender,  the  reasoning 
gives  us  no  means  of  discovering  how  this  will  operate  to  deter  others, 
except  through  the  fear  of  the  reformatory  discipline,  which,  being 
from  its  nature  a  punishment,  is  discarded  by  the  argument  from  hav- 

(a)  Roscoc. 


332  INTRODUCTORY  REPORT  TO 

ing  effect  The  other  fallacies  are,  first,  in  placing  crime  and  punish- 
ment as  evils  of  the  same  nature.  Crime  is  an  evil  operating  on  society; 
punishment,  in  the  just  degree  that  will  prevent  or  lessen  crime,  so  far 
from  being  an  evil,  is  a  good  ;  its  pain  is  only  felt  by  the  delinquent : 
the  immediate  pain  of  the  crime  may  perhaps  only  affect  the  individual 
sufferer  by  it,  but  the  alarm  it  creates,  the  certainty  that,  unless  re- 
pressed, it  will  be  repeated,  spreads  through  the  whole  community, 
and  the  uncertainty  who  will  be  its  next  victim,  makes  it  an  evil  to  all. 
The  error  lies  in  taking  that  for  granted  which  is  in  dispute,  that  the 
dread  of  punishment  does  not  deter  from  offences.  And  when  that 
comes  to  be  proved,  it  is  done  by  another  fallacy  ;  there  have  always 
been  punishments  and  there  have  always  been  and  still  are  offences  ;  if 
punishment  would  prevent  them,  there  would  be  none.  But  my  argu- 
ment is,  not  that  punishment  will  totally  prevent,  but  that  it  will 
diminish  crimes  ;  and  in  order  to  prove  that  it  has  not  this  effect,  it 
would  be  necessary  to  show  a  state  of  society  in  which  there  was  neither 
punishment  nor  crime.  Besides,  to  convince  us  that  punishment  in 
its  nature  can  have  no  effect,  it  must  be  shown  to  have  failed  when 
applied  in  its  most  perfect  form.  But  no  one  pretends  that  this  experi- 
ment has  been  ever  tried:  on  the  contrary,  those  who  contend  for  its 
efficacy,  when  properly  applied,  have  demonstrated  that,  throughout 
the  world  it  has,  in  all  ages,  been  wofully  deficient.  No  one  has  yet 
gone  so  far  as  to  draw  the  conclusion  that,  because  mild  have  generally 
been  found  more  efficacious  than  severe  punishments,  therefore  no 
penalty  ought  to  be  annexed  to  offences  ;  and  yet,  if  we  assert  that  re- 
formation is  the  only  object,  this  is  the  plain  and  inevitable  result :  for 
then  every  pain,  however  small,  inflicted  as  a  punishment,  would  be  a 
useless,  and  therefore  an  improper  evil. 

Imprisonment,  therefore,  is  to  be  used,  in  the  plan  I  propose,  to 
punish  as  well  as  to  reform.  But  to  make  imprisonment,  especially  if 
coupled  with  labour,  a  proper  sanction,  its  details  must  be  strictly  defined 
by  the  law.  Any  discretion  left  to  the  jailer  as  to  the  mode  of  inflict- 
ing it,  makes  him,  and  not  the  judge,  the  arbiter  of  the  culprit's  fate. 
He  may,  without  proper  limits  to  his  authority,  change  the  sentence  of 
a  few  years  confinement  into  the  same  period  of  exquisite  misery, 
followed  by  loss  of  health  or  of  life  ;  and  he  may  do  this  without  incur- 
ring any  penalty  :  for  where  a  full  discretion  is  given,  there  can  be  no 
penalty  except  in  extreme  cases  for  its  abuse.  If  he  may,  at  his  dis- 
cretion, inflict  stripes  for  disobedience  or  want  of  respect ;  if,  in  the 
language  held  from  the  bench  in  New  York,  it  is  his  duty,  "  by  all  the 
means  in  his  power,  to  make  the  convicts  feel  the  awful  degradation 
and  misery  to  which  their  vicious  courses  had  reduced  them,"  and 
"that  the  ordinary  sympathies  of  our  nature  could  not  be  extended  to 
them  ;"  if  this  be  permitted,  or  especially  if  inculcated  as  the  duty  of 
the  keeper,  imprisonment  is  the  worst  of  all  punishments,  because  the 
most  unequal.  It  is,  then,  no  more  the  wisdom  of  the  law  applied  to 
the  case  by  the  discretion  of  the  judge  that  apportions  the  punishment,  but 
the  caprice  or  passion  of  an  individual  in  the  exercise  of  the  fearful  duty 
of  forcing  a  convict  to  feel  the  awful  misery  and  degradation  of  his 
situation.  If  labour  be  superadded  as  a  punishment,  the  danger  of  this 
discretion  is  greatly  increased.  The  same  labour  may  be  misery  and 
death  to  one,  and  no  more  than  wholesome  exercise  to  another  ;  and  the 
greatest  abuse  and  oppression  may  be  justified  by  enforcing  a  literal 
execution  of  the  sentence.  The  law,  then,  must,  in  every  particular 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  333 

that  can  be  foreseen,  regulate  the  conduct  of  those  to  whose  keeping  the 
prisoner  is  to  be  committed  ;  and  after  every  precaution  that  human 
prudence  can  take,  the  carelessness,  or  passion,  or  pride  of  opinion  in 
the  keeper,  may  greatly  counteract  the  operation  of  a  good  system, 
and  his  intelligence,  firmness,  humanity  and  strict  attention,  may  cor- 
rect some  of  the  evils,  and  supply  some  of  the  omissions,  which  even 
the  best  cannot  escape.  For  this  reason  the  importance  of  this  office 
is  inculcated  in  the  text  of  the  code  ;  and  the  qualities  required  for  its 
exercise  are  pointed  out  as  a  guide  to  the  selecting  power,  and  a  lesson  to 
him  who  is  chosen,  that  the  one  may  not  commit  the  fatal  error  of 
underrating  the  talents  necessary  for  the  employment,  and  that  the 
other  may  feel  the  dignity  with  which  he  is  invested,  as  well  as  the 
responsibility  imposed  on  him  by  the  law.  This  was  the  more  necess- 
ary in  order  to  counteract  a  prejudice  against  the  employment  of  those 
to  whom  the  custody  of  prisons  has  been  for  many  ages  confided.  A 
well-founded  prejudice,  while  the  jailer  was  only  appointed  to  prevent  the 
escape  of  the  promiscuous  assemblage  of  vagrants  of  both  sexes,  consist- 
ing of  unfortunate  debtors,  of  innocent  or  guilty  prisoners  committed  for 
trial,  and  of  convicted  felons  awaiting  an  ignominous  death,  who  were 
placed  in  his  custody  ;  while  he  had  no  moral  duty  to  perform,  and  was 
the  mere  Cerberus  to  guard  the  doors  of  a  terrestrial  Tartarus,  such  a 
prejudice  was  just  and  unavoidable  ;  and  as  one  part  of  the  duty  of  a 
jailer  to  prevent  escapes,  necessarily  continues  to  be  vested  in  the  warden, 
the  enunciation  in  the  code  becomes  proper,  in  order  to  break  the  chain 
of  ideas  which  might  otherwise,  from  that  circumstance,  assimilate  the 
character  of  an  office  calling  for  high  talents,  and  honour  and  integrity, 
with  that  of  an  employment  the  natural  tendency  of  which  was  to  make 
him  who  exercised  it  an  extortioner  and  a  petty  tyrant. 

I  return  to  the  position,  from  which  I  may  seem  perhaps  to  have  di- 
gressed, that  the  law  should  be  so  framed  as  to  restrict  as  much  as  poss- 
ible the  discretionary  power  of  the  keeper ;  it  must  designate  the 
punishment  due  to  the  offence,  either  by  an  invariable  rule,  or  by  a 
discretion  left  to  the  judge  to  make  one  within  certain  limits.  The 
judge  must  apply  this  rule,  by  declaring  the  punishment,  if  it  be  fixed; 
by  apportioning  it  to  the  degree  of  the  offence,  if  he  have  a  discretion. 
The  punishment  once  ordered,  that  system  is  strangely  defective  which 
unnecessarily  permits  it  to  be  aggravated  or  alleviated  by  an  inferior 
officer,  at  his  will.  It  deserves  a  worse  epithet  if  it  hold  out  temptations 
for  him  to  do  it ;  and  the  strongest  that  could  be  used  to  express  dis- 
approbation, would  be  merited  if  it  is  inculcated  as  a  duty.  But  the 
system  of  social  forced  labour  makes  this  discretionary  power  unavoid- 
able ;  for  nothing,  we  are  told,  (and  I  believe  told  truly),  nothing  but 
the  lash  can  preserve  the  proper  discipline  in  such  an  association.  The 
punishment,  then,  necessary  to  execute  the  sentence  of  the  law  is  on 
this  plan,  so  far  from  being  directed  by  the  sentence,  is  one  expressly 
prohibited  by  the  law  under  which  that  sentence  is  pronounced,  and 
therefore  ought  never  to  enter  into  any  subordinate  part  of  the  system. 
What  could  be  more  incongruous  than  to  snatch  the  scourge  from  the 
hands  of  justice  to  place  it  in  those  of  caprice  ;  to  declare  it  too  severe, 
and  degrading,  and  demoralizing,  and  unequal,  to  be  applied  as  a  pun- 
ishment for  CRIME,  at  the  sound  discretion  of  the  judge,  and,  at  the 
same  time,  direct  that  it  shall  be  inflicted  for  disobedience  to  a  subal- 
tern officer  of  a  prison  at  his  pleasure  ?  1  could  not,  therefore,  offer  any 


334  INTRODUCTORY  REPORT  TO 

plan  of  imprisonment  that  would  make  this  absurdity  necessary.  Other 
disadvantages  which  are  inseparable  from  this  discipline,  have  been 
detailed  when  I  described  that  of  the  New  York  prisons,  of  which  it 
forms  so  prominent  a  feature.  I  discard  it,  therefore,  being  firmly 
convinced  that,  as  an  instrument  of  punishment,  it  is  not  only  defective 
and  dangerous,  but  that  it  cannot  be  brought  to  produce  that  reformation 
which  is  one  of  the  essential  parts  of  my  plan.  But  social  labour,  whe- 
ther general  or  in  classes  (if  those  classes  are  at  all  numerous),  cannot  be 
carried  on  without  it,  unless  the  security  and  order  of  the  prison  be 
put  at  hazard.  Social  labour,  therefore,  must  be  abandoned,  or  so  mo- 
dified, and  admitted  with  such  precautions,  as  to  render  this  anomaly 
unnecessary.  The  manner  in  which  this  has  been  attempted^  requires 
some  previous  examination  of  the  principles  on  which  it  is  founded. 

We  have,  in  former  parts  of- this  report,  considered  the  question 
whether  punishment,  as  an  object  distinct  from  reformation,  should  not 
enter  into  the  sanction  of  penal  laws  ;  and  were  brought  to  the  double 
conclusion,  that  it  was  necessary,  and  that  no  reformation  could  be  pro- 
duced without  it.  Imprisonment  has  been  examined  as  a  means  of  inflict- 
ing punishment,  and  in  this  and  in  the  introductory  report  to  the  Code  of 
Crimes  and  Punishments,  has  been  compared  with  other  corporal  punish- 
ments, and  been  found  to  possess,  in  a  greater  degree  than  any  other,  the 
essential  properties  to  render  it  effectual.  Here  we  need  only  add,  that 
there  is  no  other  means  by  which  a  reformatory  process  (necessarily  re- 
quiring time  and  a  succession  of  operations)  can  be  carried  on;  no  labour, 
no  instruction,  without  detention,  no  reformation  without  employment, 
without  instruction,  religious,  moral  and  literary.  It  must  be  remem- 
bered that  we  are  now  speaking  of  the  prison  discipline  proper  for 
convicts,  for  men  already  corrupted;  to  whom,  for  the  most  part,  labour 
was  necessary  for  support,  and  who  resorted  to  crime  in  order  to  avoid 
it.  Labour  consists  of  a  number,  of  a  succession  of  bodily  exertions, 
always  painful  when  first  endured,  becoming  tolerable  only  by  the 
habit  of  making  them,  and  never  voluntarily  resorted  to  but  from  the 
hope  of  some  enjoyment  they  are  to  produce  ;  these  two  causes  com- 
bined give  to  an  occupation  painful  in  itself,  all  the  characteristics  of  a 
pleasurable  pursuit ;  habit  destroys  the  sense  of  bodily  pain  ;  hope 
anticipates  the  reward  it  is  to  bring,  identifies  the  enjoyment  with  the 
means  of  procuring  it,  and,  by  a  wise  use  of  the  faculties  bestowed  by 
our  beneficient  Creator,  labour  becomes  cheerful,  and  its  pain  a  pleasure. 
This  might  be  further  illustrated  by  investigating  the  cause  of  pleasure 
resulting  from  the  chase,  and  other  laborious  recreations,  which  are 
often  voluntarily  pursued  so  far  as  to  become  toilsome  and  fatiguing  in  a 
degree  not  frequently  suffered  by  the  severest  labour.  In  these  pursuits, 
indeed,  the  exhilarating  effects  of  fresh  air,  of  society,  and  a  view  of 
the  beauties  of  nature,  give  a  present  enjoyment  that  is  not  found  in 
daily  employment ;  but  these  would  never  induce  us  to  go  beyond  the 
point  of  agreeable  exercise  :  they  are  pushed  into  fatigue  by  the  causes 
that  have  been  stated,  and  by  the  self-satisfaction  arising  from  a  con- 
sciousness of  dexterity  and  skill.  The  anticipation  of  the  applause  he 
will  receive,  of  the  festivity,  or  the  domestic  comfort,  that  awaits  his 
return,  is  identified  in  the  mind  of  the  sportsman  with  the  fatigue  he 
undergoes,  the  pain  of  which  habit  has  already  alleviated  ;  so  that 
the  toils  and  the  pleasures  of  the  chase  have  become  terms  that  are 
nearly  synonymous. 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  335 

The  great  painter  of  human  passions  has  beautifully  delineated  this 
association,  in  the  picture  of  a  young  lover  toiling  through  a  servile  em- 
ployment, with  the  hope  of  being  rewarded  by  the  presence  of  his  mis- 
tress, and  referring  the  patience  and  even  the  pleasure  with  which  his 
toil  was  endured  to  this  very  illustration  : 

There  be  pome  sport?  are  painful ;  but  (heir  labour, 
Delight  in  them  sets  off. 

Whenever  this  association  of  ideas  is  broken,  labour  is  regarded  as 
an  evil  unmitigated  by  any  alleviating  circumstance  ;  no  habit  will  in- 
duce a  continuance  of  it,  and  it  will  never  be  resorted  to  but  in  moments 
of  pressing  distress,  the  idea  of  which  then  becomes  incorporated  with 
it  and  embitters  its  pains.  Labour  forced  by  stripes  must  always  pro- 
duce this  dreadful  concatenation  of  ideas  ;  and  whenever  the  coercion 
ceases,  the  natural  aversion  to  fatigue  will  combine  with  the  remembrance 
of  the  evils  with  which  it  was  embittered,  and  make  the  culprit  fly  to 
vice  to  forget,  or  to  crime  to  avoid  it. 

If  these  reflections  be  well  founded,  employment  should  be  offered  as 
an  alleviation  of  punishment,  not  superadded  to  aggravate  it.  Although 
labour  is  painful,  yet  the  separate  exertions,  of  a  succession  of  which  it 
is  composed,  are  not  so  in  themselves  ;  it  is  their  repetition  only  which 
makes  them  irksome:  there  is  an  innate  love  of  action  in  human  nature, 
which  renders  its  restraint  the  principal  evil  attending  imprisonment  : 
and  involuntary  idleness,  unbroken  by  any  mental  or  bodily  occupation, 
creates  a  degree  of  suffering  which,  setting  aside  acute  physical  pain, 
can  only  be  aggravated  by  uninterrupted  solitude.  Solitude  without 
physical  employment  may  be  rendered  tolerable,  if  the  mind  can  be  di- 
verted from  its  own  reflections  by  receiving  intellectual  instruction  from 
others,  or  amusement  from  books:  these,  also,  except  so  far  as  concerns 
a  future  life,  are  indulgences  withheld  from  the  convict  by  the  tenor 
of  his  sentence. 

Next  to  the  privations  of  liberty  and  employment,  and  perhaps  supe- 
rior in  intensity  to  the  last,  is  that  of  the  usual  indulgence  of  the  appetite 
for  food  and  drink  :  to  inflict  this,  so  far  as  to  make  the  patient  suffer 
by  hunger  or  thirst,  would  be  at  war  with  the  first  principles  of  this 
system;  it  would  be  causing  an  evil,  the  degree  of  which  could  never 
be  measured  so  as  to  be  directed  by  the  sentence  ;  and  if  left  to  the  dis- 
cretion of  an  executive  officer,  would  cause  a  suffering  not  directed  by 
the  law  or  the  judge  ;  and  in  most  cases  would  change  a  sentence  of  con- 
finement into  one  carrying  with  it  loss  of  health  or  life:  food,  therefore, 
wholesome  in  quality,  and  in  abundance  sufficient  to  satisfy  the  appe- 
tite and  support  life,  but  of  the  plainest  kind,  without  any  variety  to 
stimulate,  or  delicacy  to  gratify  the  appetite,  is  allowed  to  the  convict, 
but  it  is  all  he  is  entitled  to;  and  thus  another  privation  is  added  to  those 
already  enumerated,  as  concomitants  of  the  punishment  directed  by  law. 
But  this  is  not  all  :  men  desire  not  only  liberty,  recreation,  and  the  in- 
dulgence of  the  appetite;  but  also  a  shelter  and  clothing,  fitted  to  the 
variations  of  the  season  :  and  in  civilized  life  there  are  certain  refine- 
ments of  indulgence  in  these  articles,  the  privation  of  which  becomes  a 
severe  punishment,  when  we  are  reduced  to  what  is  strictly  necessary. 
The  action  of  these  natural  inclinations,  their  restriction,  and  partial  in- 
dulgence, constitute  the  moving  power  of  my  system  of  punishment 
and  reformation. 


336  INTRODUCTORY  REPORT  TO 

Imprisonment,  solitude,  want  of  occupation,  either  for  the  mind  or 
body,  coarse  aliments,  hard  lodging,  clothing  of  the  roughest  kind,  are 
the  evils  of  which  punishments  are  composed  ;  their  duration,  their  in- 
tensity, their  cumulation,  are  the  means  provided  by  the  Code  of  Crimes 
and  Punishments,  for  adapting  them  to  the  different  offences  ;  their 
alleviation  in  different  degrees  are  those  designated  in  the  Code  of  Re- 
form and  Prison  Discipline,  for  producing  reform. 

If  the  reasoning  already  employed  be  correct,  no  succession  of  in- 
voluntary acts  to  which  adults  may  be  coerced  is  likely  to  produce  per- 
manent habits  of  reformation  :  they  must  be  the  effect  of  the  will,  ope- 
rated upon  by  the  judgment,  producing  a  conviction  that  such  acts  are 
beneficial;  and  experience  must  enforce  this  conviction,  by  giving  the 
actual  enjoyment  of  some,  and  the  certain  hope  of  other  benefits,  that 
are  the  result  of  these  acts.  With  evil  habits  it  is  different  :  for  the 
most  part  they  are  acquired  by  a  repetition  of  acts  procuring  sensual 
enjoyment;  and  the  judgment  has  so  little  agency  in  producing  them, 
that  it  must  be  silenced  or  perverted  before  the  acts  of  indulgence  are 
done  or  repeated.  It  is  for  this  reason  that  the  work  of  reformation  is 
more  difficult  than  that  of  perversion  :  the  one  requires  intellectual 
power  sufficient  to  prefer  a  distant  and  moral  good,  to  a  present  and 
physical  enjoyment:  the  other  coincides  with  the  natural  propensity  for 
present  enjoyment,  reckless  of  what  an  uncertain  futurity  may  produce. 
And  for  this  reason  also  it  is  that  the  work  of  reformation  is  slower  in 
its  operation  than  that  of  corruption.  A  single  instance  in  which  dis- 
tress has  been  alleviated,  or  expected  good  has  been  realized  by  labour 
or  exertion,  would  have  but  a  temporary  effect;  the  operation  must  be 
repeated,  and  be  made  always  to  produce  the  same  result,  and  the  judg- 
ment must  be  thoroughly  convinced  that  this  result  is  invariable,  before 
it  can  counteract  in  the  will  the  natural  preference  of  present  enjoy- 
ment to  future  good.  But  to  produce  this  effect,  the  mind  must  be  im- 
proved by  intellectual  instruction;  it  must  be  taught  that  there  are  other 
pleasures  besides  those  of  sense  ;  and  religion  must  be  brought  to  bear 
its  part  in  the  work  of  amelioration.  The  deep  solitude  of  the  prisoner's 
cell,  the  awful  impression  which  must  be  made  on  his  mind,  by  con- 
trasting the  fleeting  enjoyment  produced  by  his  crime  with  the  lasting 
evil  in  which  he  is  plunged  by  its  consequences;  the  privation  of  facti- 
tious excitements;  with  no  companions  to  applaud  his  perseverance  in 
wrong;  no  means  of  drowning  reflection  by  intemperance  ;  no  acute  or 
disproportioned  pain  to  brace  him  up  against  real  or  fancied  oppression; 
the  heart  must  necessarily  be  softened,  and  the  spirit  subdued,  and  the 
mind  prepared  to  receive  those  great  truths,  which,  under  such  circum- 
stances, may  be  inculcated  to  the  highest  advantage,  more  especially 
when  this,  combined  with  literary  instruction,  is  offered,  not  as  a  part 
of  the  sentence,  but  as  an  alleviation  of  its  rigour. 

This  spring,  then,  which  sets  in  motion  my  whole  machinery  for  pro- 
ducing reform,  is  this:  that  all  the  acts  which,  by  their  succession,  are 
to  produce  habits  of  good,  are  to  be  performed  voluntarily,  and  are 
offered  as  alleviations  of  the  severity  of  the  sentence:  the  will  must 
act,  orthe  repetition  will  produce  no  effect.  But,  to  operate  on  the  in- 
clination, sufficient  inducements  must  be  held  out  to  overcome  the  natu- 
ral repugnance  to  labour:  and  this  brings  me  back  to  the  detail  of  those 
modifications  of  imprisonment,  and  its  concomitant  labour,  which  I  offer 


THE    CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  337 

instead  of  the  strict  seclusion  of  ihe  Pennsylvania(a),  or  the  severe  dis- 
cipline of  the  New  York  system. 

To  understand  them,  a  clear  idea  must  first  be  given  of  the  place  of 
confinement.  It  consists  of  an  arched  cell  for  each  prisoner,  of  small 
dimensions,  but  well  ventilated,  and  comfortably  warmed,  communi- 
cating with  a  small  court,  surrounded  with  a  high  wall.  The  sentence 
of  the  law  is  confinement  to  the  cell,  supported  by  wholesome  but 
coarse  food,  in  sufficient  quantity  to  satisfy  hunger,  but  without  occupa- 
tion, and  with  no  other  society  than  the  attendance  of  those  officers  who 
minister  to  the  physical  wants  of  the  prisoner,  and  to  his  religious  in- 
struction. Privation  of  employment  is  denounced  as  a  part  of  the  pun- 
ishment; and  this  circumstance  alone  would,  with  most  men,  cause  it  to 
be  considered  as  an  evil,  and  the  experience  of  its  effects  will  soon  cause 
it  to  be  felt  as  such;  of  course  it  will  be  connected  with  the  idea  of  suf- 
fering; and  occupation  being  denied,  will,  from  the  propensity  to  wish 
for  that  from  which  we  are  expressly  debarred,  be  estimated  as  a  good, 
and  desired  with  an  intensity  proportioned  to  the  strictness  and  length 
of  the  privation.  To  strengthen  this  natural  desire,  other  inducements 
are  offered.  He  who  labours  lessens  the  expense  of  his  support,  he  who 
works  skilfully  and  diligently  may  more  than  repay  it.  The  advan- 
tage of  this  beneficial  result  must  be  felt  by  the  prisoner  as  well  as  the 
state:  if  the  proceeds  of  his  work  should  not  be  sufficient  to  cover  his 
expenses,  it  yet  produces  for  him  a  better  diet;  and  if  persevered  in, 
and  accompanied  with  good  conduct,  for  certain  probationary  periods 
of  six  and  twelve  months,  during  which  he  is  permitted  in  the  day  to 
leave  his  cell  and  pursue  his  solitary  employment  in  the  court,  he  is  in- 
dulged with  the  privilege  of  working,  and  receiving  instruction  in  a 
small  class,  not  exceeding  ten:  but,  if  he  acquires  such  proficiency  in 
his  business  as  to  make  the  proceeds  of  his  industry  exceed  the  expense 
of  his  support,  he  is  allowed  the  immediate  enjoyment  of  a  part,  to  be 
laid  out  in  books,  or  such  other  articles  as  he  may  desire.  Those  of 
food  or  drink  are  excepted,  in  order  to  avoid  irregularities  that  would 
otherwise  be  unavoidable;  and  the  residue  of  the  surplus  is  an  accumu- 
lating fund  to  be  paid  to  him  on  his  discharge.  To  give  the  greater 
effect  to  these  inducements,  they  are  not  offered  to  the  convict  on  his 
commitment  to  the  prison:  first  he  must  know  and  feel  the  unmitigated 
punishment;  his  own  reflections  must  be  his  only  companions  for  a  pre- 
liminary period,  during  which  he  is  closely  confined  to  his  cell  ;.  he 
must  live  on  the  coarse  diet  allowqd  to  the  unemployed  prisoner  ;  he 
must  suffer  the  tedium  arising  from  want  of  society  and  of  occupation,  and 
when  he  begins  to  feel  that  labour  would  be  an  indulgence,  it  is  offered  to 
him  as  such;  it  is  not  threatened  as  an  evil,  nor  urged  upon  his  acceptance 
as  an  ad  vantage  to  any  but  to  himself;  and  when  he  is  employed,  no  stripes, 
no  punishments  whatever,  are  inflicted,  for  want  of  diligence;  if  not  pro- 
perly used,  the  indulgence  is  withdrawn,  and  he  returns  to  his  solitude 
and  other  privations,  not  to  punish  him  for  not  labouring,  but  merely 
because  his  conduct  shows  that  he  prefers  that  state  to  the  enjoyment 

(a)  Mr  Roberts  Vaux,  one  of  (he  commissioners  for  building  the  new  prison,  a  gentleman 
to  whose  instructive  publications  and  conversation  1  am  indebted  for  much  useful  information, 
has  informed  me  that  the  plan  of  strict  seclusion  which  1  have  quoted  has  never  received 
the  sanction  of  the  legislature,  and  that  there  it  a  probability  it  will  be  so  modified  as  to  admit 
labour  and  instruction. 
2  5 


338  INTRODUCTORY  REPORT  TO 

with  which  employment  must  always  be  associated  in  his  mind,  in 
order  to  produce  reformation.  If  it  has  been  shown  that  involuntary 
acts  of  employment  will  not  produce  a  lasting  habit,  then,  if  there  be 
any  such  as  will  not  accept  these  alleviations  of  their  imprisonment, 
upon  them  the  imprisonment  must  operate  solely  as  a  punishment 
But  experience  shows  that  these  exceptions  will,  if  any,  be  very  few: 
for  employment,  even  under  the  lash,  is  in  most  cases  preferred  to 
solitude. 

It  is  no  unimportant  part  of  this  plan,  that  education  and  intellectual 
improvement,  as  well  as  mere  physical  enjoyments,  are  held  out  as  in- 
ducements for  the  exercise  of  industry,  skill,  and  good  conduct.  These 
are  to  be  rewarded  by  the  use  of  books  combining  entertainment  with 
instruction;  the  instruments,  and  other  means,  of  exercising  the  mind 
in  science,  or  the  hand  in  the  delicate  operations  of  the  fine  arts,  of  de- 
veloping talent  or  improving  skill.  Such  pursuits  offer,  perhaps,  the 
most  efficient  means  of  reformation  ;  they  Operate  by  reconciling  the 
convict  to  himself,  which  is  the  first  and  most  difficult  point  to  be 
gained.  The  daily  exercise  of  mental  powers,  the  consciousness  of 
progress  in  useful  knowledge,  must  raise  him  in  his  own  estimation  ; 
and  this  honest  pride,  once  set  at  work,  will  do  more  to  change  the 
conduct  and  purify  the  heart,  than  any  external  agency,  however  con- 
stantly or  skilfully  applied. 

Let  it  not  be  said  that  this  is  a  theory  too  refined  to  be  adapted  to 
depraved  and  degraded  convicts.  Convicts  are  men.  The  most  de- 
praved and  degraded  are  men  :  their  minds  are  moved  by  the  same 
springs  that  give  activity  to  those  of  others  ;  they  avoid  pain  with  the 
same  care,  and  pursue  pleasure  with  the  same  avidity,  that  actuate  their 
fellow  mortals.  It  is  the  false  direction  only  of  these  great  motives 
that  produces  the  criminal  actions  which  they  prompt.  To  turn  them 
into  a  course  that  produces  the  criminal  actions  which  they  prompt. 
To  turn  them  into  a  course  that  will  promote  the  true  happiness  of  the 
individual,  by  making  him  cease  to  injure  that  of  society,  should  be  the 
great  object  of  penal  jurisprudence.  The  error,  it  appears  to  me,  lies 
in  considering  them  as  beings  of  a  nature  so  inferior  as  to  be  incapable 
of  elevation,  and  so  bad  as  to  make  any  amelioration  impossible  ;  but 
crime  is  the  effect  principally  of  intemperance,  idleness,  ignorance, 
vicious  associations,  irreligion  and  poverty — not  of  any  defective  natu- 
ral organization  ;  and  the  laws  which  permit  the  unrestrained  and 
continual  exercise  of  these  causes,  are  themselves  the  sources  of  those 
excesses  which  legislators,  to  cover  their  own  inattention,  or  indolence, 
or  ignorance,  impiously  and  falsely  ascribe  to  the  Supreme  Being,  as  if 
he  had  created  man  incapable  of  receiving  the  impressions  of  good. 
Let  us  try  the  experiment,  before  we  pronounce  that  even  the  degraded 
convict  cannot  be  reclaimed.  It  has  never  yet  been  tried.  Every 
plan  hitherto  offered,  is  manifestly  defective,  because  none  has  con- 
templated a  complete  system,  and  partial  remedies  never  can  succeed. 
It  would  be  a  presumption,  of  which  the  reporter's  deep  sense  of  his 
own  incapacity  renders  him  incapable,  were  he  to  say,  that  what  he 
offers  is  a  perfect  system,  or  to  think  that  it  will  produce  all  the  effects 
which  might  be  expected  from  a  good  one  ;  but  he  may  be  permitted, 
perhaps,  to  believe,  that  the  principles  on  which  it  is  founded  are  not 
discordant ;  that  it  has  a  unity  of  design,  and  embraces  a  greater  com- 
bination of  provisions,  all  tending  to  produce  the  same  result,  than  any 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  339 

that  has  yet  been  practised.  Whether  those  principles  are  correct,  or 
the  details  proper  to  enforce  them,  the  superior  wisdom  of  the  legisla- 
ture must  determine.  But,  to  think  that  the  best  plan  which  human 
sagacity  could  devise  will  produce  reformation  in  every  case  ;  that 
there  will  not  be  numerous  exceptions  to  its  general  effect,  would  be  to 
indulge  the  visionary  belief  of  a  moral  panacea,  applicable  to  all  vices 
and  all  crimes;  and  although  this  would  be  quackery  in  legislation,  as 
absurd  as  any  that  has  appeared  in  medicine,  yet,  to  say  that  there  are 
no  general  rules  by  which  reformation  of  the  mind  may  be  produced, 
is  as  great  and  fatal  an  error  as  to  assert  that  there  are  in  the  healing 
art  no  useful  rules  for  preserving  the  general  health  and  bodily  vigour 
of  the  patient. 

A  reference  to  the  text  of  the  code  is  all  that  is  necessary  for  the 
details  by  which  it  has  been  endeavoured  to  temper  the  rigour  of  solitary 
confinement,  by  useful  employment  and  instruction,  as  a  favour,  to  be 
withdrawn  when  neglected  or  abused;  by  the  hope  of  enjoying  society 
after  a  probationary  period  ;  and  by  the  immediate  rewards  of  labour 
and  skill,  in  procuring  social  comforts  and  other  conveniences.  The 
indulgence  of  society  in  labour  and  instruction,  which  is  offered  as  the 
greatest  inducement  to  good  conduct,  has  its  value  enhanced  by  the 
delay  and  perseverance  in  industry,  which  are  prescribed  as  necessary 
to  its  attainment ;  and,  when  granted,  the  number  in  each  class  is  so 
small  as  to  preclude  the  necessity  of  any  severe  discipline  to  maintain 
order,  which,  it  is  supposed,  may  be  preserved  by  the  precautions  that 
are  prescribed,  by  the  fear  of  forfeiting  the  privilege,  and  by  the  ad- 
vance towards  reformation,  which  must  be  made  before  the  indulgence 
is  granted. 

The  average  term  of  confinement  may  be  assumed  to  be  from  four 
to  six  years,  for  such  crimes,  affecting  property,  as  are  attended  with 
no  circumstances  in  their  commission  to  show  greater  depravity  than 
the  crime  itself  supposes;  of  this  time,  six  months  must  necessarily  be 
spent  in  solitude,  with  no  alleviation  but  labour  ;  twelve  more  in  the 
same  confinement,  unless  a  desire  for  intellectual  improvement  (the 
evidence  of  the  first  step  towards  reform),  should  have  diversified  it  by 
intervals  of  social  instruction  ;  and  the  remainder  of  the  term,  in  con- 
tinuing those  lessons,  and  in  perfecting  that  dexterity  in  mechanical 
employment  which  is  best  acquired  in  society.  A  period  thus  passed, 
without  any  possibility  of  corrupting  associations,  with  the  daily  expe- 
rience of  the  actual  enjoyments  gained  by  diligence,  hearing  no  precepts 
but  those  of  religion,  morality  and  science,  and  those  inculcated  not  in 
the  harsh  language  of  reproach,  but  in  the  mild  yet  firm  accents  of 
advice,  pronounced  by  men  who  take  an  interest  in  the  welfare  of  the 
convict;  and  with  the  cheering  prospect  of  regaining,  by  honest  indus- 
try, that  good  opinion  of  society,  which  no  one  ever  lost  without  regret: 
a  period  thus  passed,  it  is  confidently  believed,  must  efface  bad  im- 
pressions, must  create  lasting  habits  of  industry  and  virtuous  pursuit, 
must  discharge  the  subject  of  this  discipline  from  the  prison  a  better,  a 
wiser  and  a  happier  man  than  he  entered.  But  these  happy  effects  will 
be  counteracted;  the  care,  labour  and  expense,  of  your  reformatory  dis- 
cipline, will  have  been  uselessly  incurred;  if  your  proselyte  to  virtue 
and  industry  is  to  have  the  one  exposed  to  the  seduction  of  his  former 
associates,  and  the  other  rendered  useless  by  the  want  of  means  to  exert 
it  It  will  be  in  vain  that  you  have  given  him  the  skill  necessary  for  his 


340  INTRODUCTORY  REPORT  TO 

support,  if  no  one  will  afford  him  an  opportunity  of  using  it;  or  that  you 
have  made  him  an  honest  man,  if  all  the  world  avoids  him  as  a  villain  ; 
his  relapse  is  certain,  unavoidable,  and  his  depravity  will  be  the  greater, 
from  the  experience  that  reformation  has  been  productive  only  of  dis- 
trust, want  and  misery.  "Seven  evil  spirits"  will  take  possession  of 
the  mind  that  has  been  "swept  and  garnished"  by  your  discipline,  and 
"the  last  state  of  that  man  shall  be  worse  than  the  first."  To  avoid 
this  result,  so  destructive  of  the  whole  system,  an  asylum  is  provided 
in  the  House  of  Refuge  and  Industry,  (the  other  departments  of  which 
have  been  already  described).  Here  the  discharged  convict  may  find 
employment  and  subsistence,  and  receive  such  wages  as  will  enable 
him  to  remove  from  the  scenes  of  his  past  crimes,  place  him  above 
temptation,  confirm  him  in  his  newly  acquired  habits  of  industry,  and 
cause  him  safely  to  pass  the  dangerous  and  trying  period  between  the 
acquisition  of  his  liberty  and  restoration  to  the  confidence  of  society. 
Independently  of  this  resource,  the  industrious  convict  receives,at  his  dis- 
charge, a  proper  proportion  of  his  surplus  earnings;  he  receives  friendly 
advice  as  to  his  future  pursuits,  and  a  certificate  (if  he  has  merited  it) 
of  such  conduct  as  will  entitle  him  to  confidence;  the  consequences  of 
reconviction  are  solemnly  represented  to  him,  and  his  conduct,  if  he 
remain  in  the  neighbourhood  of  the  prison,  is  carefully  watched,  so  that 
if  he  return  to  habits  of  idleness  and  intemperance,  his  career  to  crime 
may  be  stopped  by  a  commitment  to  the  House  of  Industry  as  a  vagrant. 
The  cause,  the  temptation,  or  the  excuse  for  relapse,  being  thus  re- 
moved, it  is  hoped  that  instances  of  return  to  vicious  pursuits  will 
become  more  rare,  and  that  many  will  become  useful  members  of 
society,  who,  under  the  present  system,  either  burthen  it  by  their 
poverty,  or  prey  upon  it  by  their  crimes.  The  House  of  Refuge  is 
rendered  the  more  necessary,  because  a  man  of  prudence  will  no  more 
receive  or  employ  a  convict  discharged  fronrone  of  our  present  peni- 
tentiaries, than  he  would  shut  up  with  his  flock  a  wild  beast  escaped 
from  its  keepers :  but  the  reformatory  plan,  once  fairly  in  operation, 
its  principles  studied,  developed,  steadily  adhered  to,  improved  by  the 
light  of  experience,  and  its  beneficial  effects  upon  morals  perceived, 
the  man  who  has  undergone  its  purifying  operation  will,  in  time,  be 
no  longer  regarded  with  fear  or  contempt,  and  society,  by  confiding  in 
his  reformation,  will  permit  him  to  be  honest;  the  House  of  Refuge  will 
then  become  less  necessary,  and  its  expense,  of  course,  diminished(a). 
Before  I  quit  the  consideration  of  this  establishment,  it  may  be 
necessary  to  dispose  of  an  objection  sometimes  raised  to  it,  as  well  as 
to  the  penitentiary  :  that  the  products  of  mechanical  operations,  which 
may  be  carried  on  there,  will  be  sold  cheaper  than  they  can  be  afforded 
by  the  regular  mechanic,  who  is  burthened  with  the  support  of  a  family, 
with  rent,  taxes  and  other  charges,  and  thus  injure  the  innocent,  in 

(a)  This  theory  is  confirmed  by  experience  in  the  House  of  Refuge  at  New  York.  Al- 
though admission  into  that  school  is  obtained  only  by  vagrancy  on  conviction ;  yet,  such 
reliance  is  placed  upon  the  reformatory  effect  of  the  discipline,  that  the  applications  for  ap- 
prentices of  both  sexes  are  so  numerous  that  they  cannot  be  complied  with.  Nor  is  the 
confidence  misplaced.  A  single  instance  only  having  been  known  in  which  the  employer 
was  dissatisfied  with  the  conduct  of  his  apprentice.  After  making  all  due  allowan.ee  for  the 
docility  of  children,  the  same  effects  may  reasonably  be  expected,  in  a  great  degree,  upon 
adults,  by  a  longer  and  severer  course  of  discipline. 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  341 

order  to  find  employment  for  the  guilty.  This  objection  could  only 
have  weight  if  all  the  convicts  were  employed  in  one  business,  and 
that  in  a  country  where  there  is  a  greater  supply  of  labour  than  there 
is  a  demand  for  it;  but  here  the  very  reverse  of  this  is  the  fact.  Again, 
if  all  the  convicts  should  be  employed  in  a  single  occupation,  it  must 
be  because  there  is  an  excess  of  demand  for  that  species  of  labour  over 
the  supply  ;  and  while  that  continues,  there  can  be  no  injury  :  when 
that  demand  is  reduced,  the  business  will  be  abandoned  both  within 
and  without  the  prison.  As  respects  the  public  interest,  there  can  be 
no  doubt,  for  the  question  reduces  itself  to  this — whether  the  convicts 
are  to  be  maintained  in  idleness,  or  suffered  to  contribute  by  labour  to 
their  own  support  ?  And  even  as  regards  particular  classes  of  me- 
chanics, the  same  reasoning  which  would  prevent  their  trade  being 
carried  on  in  prison,  would  go  to  show  that  it  ought  to  be  limited  with- 
out. But  the  best  answer  to  the  objection  is,  that  experience  has  never 
realized  any  of  the  evils  that  have  been  apprehended. 

Having  passed  through  the  different  stages  of  confinement  with  the 
prisoner  committed  for  a  term;  having  shown  the  hopes  and  fears,  the 
occupation,  instruction  and  discipline,  by  which  he  is  to  be  punished 
and  reformed;  and,  having  unlocked  the  door  of  his  cell,  and  restored 
him  to  the  world  a  renovated  man;  we  must  return  once  more  to  the 
interior  of  the  prison,  to  visit  those  who  have  by  their  atrocity  rendered 
it  unsafe  to  trust  them  in  that  society,  the  very  existence  of  which  their 
crimes  have  put  to  hazard.  They  are  those  whose  offences  are  now 
punished  with  death.  Reformation  enters  no  farther  into  their  treat- 
ment than  as  it  concerns  them  individually.  Shut  out  for  ever  from 
civil  society,  its  laws  provide  no  means  for  their  future  employment ; 
it  is  indifferent  as  to  their  habits,  and  solicitous  only  that,  for  their  own 
sake,  they  should  make  their  peace  with  Heaven  :  for,  in  avoiding  to 
punish  with  death,  it  would  not  "kill  the  soul." 

The  confinement  of  this  class  is  intended  for  two  purposes  only  : 
first,  by  actual  restraint,  to  secure  society  against  a  repetition  of  the 
crime.  Next,  to  deter  others  from  committing  a  similar  one,  by  the 
severity  of  the  punishment.  These  two  purposes  are  attained  by  abso- 
lute seclusion,  under  circumstances  varied  according  to  the  enormity  of 
the  offence.  These  circumstances  are  calculated  to  strike  the  imagina- 
tion with  horror  for  the  crime,  without  awaking  any  dangerous  sympa- 
thy for  the  sufferer.  A  gloomy  cell;  inscriptions  recording  the  nature 
of  the  crime  and  the  intensity  of  the  punishment;  so  much  of  mystery 
as  excites  the  imagination;  real  suffering  enough  to  deter  when  the  veil 
is  withdrawn,  not  so  much  as  to  enlist  the  feelings  of  the  community 
and  make  them  arraign  the  cruelty  of  the  law  ;  perfect  security  from 
escape  ;  a  gradation  in  the  discipline  to  show,  by  strong  features,  the 
different  degrees  of  atrocity  of  the  crime  ;  such  are  the  characteristics 
of  the  punishments  substituted  for  that  of  death,  now  inflicted  for  the 
different  species  of  capital  homicide.  These  convicts  are  considered, 
for  many  purposes,  to  be  as  much  dead  to  the  world  as  if  no  commuta- 
tion of  their  former  punishment  had  been  made  ;  their  property  is  di- 
vided among  their  heirs  ;  they  are  buried  in  their  solitary  cells,  and 
their  epitaph  is  contained  in  the  inscription  that  records  their  crime, 
and  the  daily  renewal  of  its  punishment.  Their  existence  is  preserved 
by  the  policy  of  the  law,  for  reasons  which  it  has  proclaimed  ;  and, 
although  they  are  kept  within  the  reach  of  the  pardoning  power,  yet 


342  INTRODUCTORY  REPORT  TO 

that  policy  will  be  counteracted  by  any  remission  of  the  sentence,  the 
case  of  acknowledged  innocence  alone  excepted. 

Those  who  are  confined  for  life,  for  a  repetition  of  minor  offences, 
are  considered  more  in  the  light  of  incurables,  than  atrocious  offenders 
whose  ferocious  disposition  makes  perpetual  restraint  necessary  for  the 
peace  of  society.  Yet  a  very  long  and  uninterrupted  curative  process 
may  sometimes  succeed  in  cases  that  were  deemed  desperate,  and  the 
subjects  of  this  observation  have,  therefore,  the  same  advantages  of  in- 
struction and  employment  offered  to  them,  that  are  given  to  the  other 
convicts,  in  the  hope  that,  by  unequivocal  evidence  of  reformation, 
after  a  very  long  probatory  period  without  relapse,  they  may  be  dis- 
charged by  the  pardoning  power.  It  is  highly  important,  however, 
that  this  should  not  be  lightly  or  frequently  exercised.  Few  circum- 
stances have  tended  more  directly  to  disappoint  the  friends  of  the  peni- 
tentiary system,  than  the  counteractive  operation  of  this  prerogative  : 
parsimonious  legislative  provisions  have  furnished  an  excuse  for  its 
exercise,  to  a  degree  that  renders  every  attempt  to  punish  or  reform 
by  imprisonment,  equally  abortive;  and,  if  the  unhappy  facility  of  grant- 
ing pardons  be  not  checked,  it  is  in  vain  to  hope  that  the  best  organized 
plan  will  produce  any  good  effect.  Restraint  will  be  suffered  with 
impatience,  instruction  will  be  unheeded,  labour  neglected,  and  counsel 
derided,  while  the  mind  is  kept  in  the  feverish  state  of  expectation, 
which  the  daily  release  of  fellow  convicts,  more  guilty,  perhaps,  but 
better  befriended,  must  produce  on  those  who  remain.  In  some  states 
this  abuse  has  become  so  prevalent,  that  the  culprit  has  not  only  in  his 
favour  the  chance  of  escaping  detection,  or,  if  detected,  the  chance  of 
acquittal,  but,  after  conviction,  it  has  become  more  probable  that  he 
will  be  discharged  by  pardon(a),  than  that  his  sentence  will  be  exe- 
cuted. With  so  many  chances  in  his  favour,  the  felon  continues  his 
game  without  fear  or  scruple.  The  prison  loses  its  terrors  as  a  place  of 
punishment,  and  its  discipline  becomes  a  mockery  to  those  who  remain, 
cursing  their  ill  fortune,  and  hoping  that,  in  the  next  lottery  of  par- 
dons, they  may  gain  the  prize  of  discharge.  Before  I  passed  from  the 
penitentiary  discipline  to  another  branch  of  my  subject,  it  was  necessary 
to  advert  to  this  radical,  and,  unfortunately,  in  most  of  the  states,  this 
constitutional  evil,  to  which,  of  course,  no  other  remedy  can  be  applied 
by  the  legislative,  than  the  voice  of  expostulation  with  the  executive 
power.  A  very  able  report  on  this  subject,  made  by  the  direction  of 
a  society  for  the  prevention  of  pauperism  in  the  city  of  New  York,  in 
the  year  1822,  contains  the  opinions  of  the  most  celebrated  jurists  and 
magistrates  in  every  state  in  the  union,  all  of  whom  concur  in  stating 
frequent  pardons  to  be  the  greatest  obstacle  that  the  penitentiary  sys- 
tem has  to  encounter.  Out  of  it  has  arisen  another  evil ;  soliciting 
pardons,  has,  in  some  places,  become  a.  business;  men  who  disgrace  an 
honourable  profession,  hang  about  the  doors  of  the  prison,  bargain  with 
the  convict,  to  be  paid,  perhaps,  out  of  the  proceeds  of  his  crime;  by 
importunity  or  false  statements,  procure  the  signatures  of  respectable 
men  to  petitions,  deceive  the  executive  power  by  false  allegations  of 
reformation,  and  procure  the  pardon  of  the  most  hardened  offenders  ; 

(a)  In  five  years,  seven  hundred  and  forty  convicts  were  discharged  by  pardon  from  the 
New  York  prison,  and  only  seventy-three  by  the  expiration  of  their  sentence,  making  the 
chance  of  impunity  after  conviction,  more  than  ten  to  one  in  favour  of  the  convict. 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  343 

who  use  their  liberty  only  to  commit  new  depredations,  in  the  hope  of 
again  being  released  ;  and,  strange  to  tell,  this  hope  has  been  realized 
after  a  second  and  even  a  third  sentence.  Out  of  sixteen  committed 
for  a  second  offence  to  the  New  York  penitentiary,  in  1825,  eleven 
had  been  discharged  by  pardon,  and  of  those  committed  in  the  same 
year,  for  a  third  offence,  every  one  had  been  previously  twice  par- 
doned. To  arrest,  if  possible,  the  progress  of  this  abuse,  which  totally 
counteracts  every  attempt  to  punish  or  reform,  the  text  of  the  code 
is  made  to  express  the  wishes  of  the  legislature,  and  a  provision  is 
introduced,  making  the  soliciting  of  pardons,  for  reward,  a  punishable 
offence. 

One  other  institution  remains  to  be  described;  one  of  perhaps  quite 
as  much  importance  as  any  other  in  the  system.  It  is  the  School  of 
Reform  ;  designed  for  the  confinement,  and  discipline,  and  instruction 
of  juvenile  offenders  and  young  vagrants.  Of  all  the  establishments 
suggested  by  the  charity,  and  executed  by  the  active  and  enlightened 
benevolence  of  modern  times,  none  interests  more  deeply  the  best  feel- 
ings of  the  heart.  Whether  we  consider  the  evil  avoided,  or  the 
positive  good  bestowed,  it  is  equally  worthy  of  our  admiration. 

The  provisions  of  law  have  heretofore  denounced  the  same  punish- 
ment against  the  first  offence  of  a  child,  that  they  awarded  to  the  vete- 
ran in  guilt;  the  seducer  to  crime,  and' the  artless  victim  of  his  corrup- 
tion, were  confounded  in  the  same  penalty,  and  that  penalty,  until  lately, 
was  here,  and.  in  the  land  from  whence  we  derive  our  jurisprudence 
still  is — death.  We  have  substituted  imprisonment;  but  our  laws  make 
no  other  distinction  between  adults  and  children,  than  that  contained  in 
the  common  law,  by  which  all -above  a  certain  age,  and  that  a  very 
tender  one,  are  supposed  to  have  sufficient  discretion  to  know  both  the 
law  and  its  penalty;  and  as  to  those  who  have  not  attained  that  age,  it 
is  a  matter  of  inquiry  to  be  determined  by  evidence,  and  an  instance  is 
recorded,  in  which  an  infant  of  nine  years  was  convicted  and  executed 
for  murder.  For  the  minor  offences,  affecting  property,  indictments 
against  children  are  frequent;  and  humanity  is  equally  shocked,  whether 
they  are  convicted,  or,  by  the  lenity  of  the  jury,  discharged,  to  com- 
plete their  education  of  infamy.  In  the  penal  code  which  you  have 
under  consideration,  some  material  changes  are  introduced  on  this  sub- 
ject; an  age  is  fixed,  below  which  guilt  cannot  be  supposed,  and  the  in- 
quiry as  to  discretion  can  only  take  place  when  the  accused  is  above 
that  age,  but  below  another,  at  which  sufficient  capacity  may  always  be 
presumed.  It  also  contains  other  provisions,  which  govern  the  case  in 
which  a  child  does  the  prohibited  act,  in  the  presence,  or  under  the  in- 
fluence of  a  parent  or  superior.  But,  with  all  these  modifications, 
nothing  materially  good,  under  this  head  would  be  effected,  if,  after 
conviction,  the  same  discipline  were  indiscriminately  applied  to  chil- 
dren and  adults.  The  necessity  of  a  different  course,  whether  for  pun- 
ishment, or  education  or  reform,  is  so  clearly  pointed  out  by  nature, 
that  he  must  be  an  inattentive  observer  of  her  laws,  who  does  not  per- 
ceive it;  and  it  should  be  considered,  that,  when  a  child  of  tender  age 
commits  an  offence  against  the  law  of  society,  he  acts,  for  the  most 
part,  in  obedience  to  one  which  with  him  has  a  paramount  force — that 
of  nature — who  has  given  him  strong  desires  to  possess  an  ardent  pas- 
sion for  novelty,  and  a  free  spirit,  that  with  difficulty  submits  to  re- 
straint; while  she  has  withheld  that  discretion  which  alone  can  give  a 


344  INTRODUCTORY  REPORT  TO 

voluntary  control  over  those  passions.  For  acts  committed  before  this 
discretion  is  acquired,  or  when,  by  the  visitation  of  Providence,  it  is 
taken  away,  it  is  unjust  to  punish,  although  the  good  of  society  requires 
that  we  should  restrain.  Paternal,  or  any  other  authority  that  repre- 
sents it,  stands  in  the  place  of  this  discretion,  until  it  is  conferred  by 
instruction,  experience,  and  the  natural  expansion  of  the  faculties.  To 
this  domestic  lawgiver  and  judge,  is  confided,  during  this  interval,  the 
task  of  repressing  all  the  faults  of  infancy;  and  when  they  become  hurt- 
ful to  others,  he,  not  the  child  whom  he  ought  to  have  restrained,  is  an- 
swerable; civilly,  if  the  injury  were  done  without  his  connivance  or 
permission;  criminally  if  it  were.  These  are  the  dictates  of  most  laws, 
applicable  to  a  period  of  infancy  more  or  less  indefinite,  according  to 
different  systems  ;  but,  after  that  period,  they  all  abandon  these  sound 
principles,  and  hold  the  child  personally  accountable  to  the  penal  law; 
and  if  he  has  shown  dexterity  in  committing  the  crime,  or  used  shifts 
to  avoid  detection,  it  is,  by  the  common  law,  counted  sufficient  evidence 
of  a  consciousness  of  moral  guilt,  and  of  a  discretion  that  ought  to  have 
prevented  the  offence.  But  they  do  not  consider  that  the  moral  sense 
is,  in  childhood,  produced  by  instruction  only,  and  the  force  of  exam- 
ple, and  that,  with  the  children  who  are  generally  the  objects  of  criminal 
procedure,  instruction  has  either  been  totally  wanting,  or  both  that  and 
example  have  been  of  a  nature  to  pervert,  not  form,  a  sense  of  right ; 
so  that,  if  the  want  of  discretion  entitles  to  the  protective  power  of  the 
law,  it  is  due  to  the  adolescence  of  children  quite  as  much  #s  it  is  to  their 
infancy.  Either  they  have  parents  who  entirely  neglect  the  task,  or 
abuse  the  power  given  to  them  by  nature,  and  confirmed  by  the  laws  of 
society;  without  relations,  they  are  thrown  friendless  and  unprotected 
into  the  most  contaminating  associations,  where  morality,  religion  and 
temperance,  are  spoken  of  only  to  be  derided,  and  the  restraints  of  law 
are  studied  only  to  be  .evaded.  In  either  of  these  cases,  these  unfortu- 
nate victims  to  the  vices  of  others,  have  a  right  to  demand  that  the  com- 
munity shall  supply  the  place  of  their  natural  protectors,  and  teach  them 
the  sanction  of  the  law  before  they  are  punished  for  its  breach.  In  a 
country  governed  by  wise  laws,  faithfully  executed,  this  class  of  chil- 
dren would  be  very  small ;  moral,  religious  and  literary  education 
would  be  brought,  in  such  a  country,  within  the  reach  of  every  indivi- 
dual, and  he  would  be  forced  to  avail  himself  of  these  advantages;  ours, 
in  this  respect,  is  not  yet  such  a  country.  We  are  rapidly  advancing 
towards  this  degree  of  perfection;  but,  until  we  attain  it,  the  defect  in 
this  part  of  our  system  increases  the  obligation  on  the  community  to  be 
a  father  to  the  fatherless  ;  to  snatch  the  innocent  child  from  the  hands 
of  depraved  parents,  and  the  orphan  from  the  contamination  of  vice 
and  infamy;  and,  instead  of  harsh  punishments,  inflicted  for  offences 
which  its  own  neglect  of  duty  has  occasioned,  to  remove  their  cause  by 
the  milder  methods  of  instruction  and  useful  employment. 

The  place  for  the  confinement  of  juvenile  offenders,  for  these  reasons, 
is  to  be  considered  more  as  a  school  of  instruction  than  a  prison  for 
degrading  punishment;  a  school  in  which  the  vicious  habits  of  the  pupil 
require  a  strict  discipline,  but  still  a  school;  into  which  he  enters  a 
vicious  boy,  and  from  which  he  is  to  depart  a  virtuous  and  industrious 
youth;  where  the  involuntary  vices  and  crimes  with  which  his  early 
childhood  was  stained,  are  to  be  eradicated,  their  very  remembrance 
lost;  and,  in  their  place,  the  lessons  inculcated,  and  the  examples  given, 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  345 

which  would  have  guided  him,  had  the  duties  of  nature  and  society 
been  performed.  From  hence  he  begins  his  career  of  life;  and  as  it 
would  be  unjust  to  load  him,  on  his  outset,  with  the  opprobrium  which 
would  be  inseparable  from  an  association,  in  the  same  place  of  punish- 
ment, with  hardened  offenders,  it  became  necessary,  as  well  from  this 
circumstance  as  from  the  different  nature  of  the  discipline,  to  separate 
this  entirely,  both  by  locality  and  name,  from  the  other  prisons. 

To  argue  the  utility,  or  to  descant  on  the  humanity,  of  this  establish- 
ment, after  demonstrating  its  justice,  would  be  a  useless  task.  Every 
mind  that  has  investigated  the  causes  and  progress  of  crime,  must  ac- 
knowledge the  one  ;  every  benevolent  heart  must  feel  the  other.  And 
even  economy,  cold,  calculating  economy,  after  stating  the  account  in 
dollars  and  cents,  must  confess  that  this  is  a  money-saving  institution. 
If  it  is  wise  to  prevent  an  hundred  atrocious  crimes  by  removing  the 
opprobrium  of  a  venial  fault,  and  substituting  instruction  for  punish- 
ment; if  it  is  the  highest  species  of  humanity  to  relieve  from  the  misery 
of  vice  and  the  degradation  of  crime,  to  extend  the  operation  of  charity 
to  the  mind,  and  to  snatch  with  its  angel  arm  innocence  from  seduction  ; 
if  it  be  a  saving  to  society  to  support  an  infant  for  a  few  years  at  school, 
and  thereby  avoid  the  charge  of  the  depredations  of  a  felon  for  the  rest 
of  his  life(a),  and  the  expense  of  his  future  convictions  and  confine- 
ments ;  then  is  the  School  of  Reform — a  wise,  a  humane,  and  an  econo- 
mical institution. 

I  need  not  enlarge  this  report  by  the  details  for  the  government  of 
this  school  ;  they  are  minutely  contained  in  the  code.  One  principle 
pervades  the  whole,  which  has  been  sufficiently  enlarged  upon  :  that 
the  offences  of  children  may  be  sufficiently  corrected,  both  for  the 

(a)  There  is  hardly  a  child  who  will  be  condemned  to  it  (the  New  York  House  of  Re- 
fuge), who,  if  left  to  the  course  which  would  bring  him  to  it,  would  not  finally  be  supported  by 
the  state  as  a  convict.  The  evidence  of  this  is,  that  a  very  large  proportion  who  are  no  w  con- 
fiend  in  our  state  prisons,  commenced  their  career  in  crime?  when  they  were  children,  in 
some  of  our  large  cities.  One  person  in  particular,  who  is  now  confined  in  the  prison  at  Au- 
burn, was  first  convicted  when  he  was  only  ten  years  old,  and  has  since  been,  at  different 
times,  twenty-eight  years  a  convict,  supported  by  the  state,  at  an  expense  of  not  less  than 
two  thousand  dollars. — Report  of  the  New  York  Committee. 

In  the  Arch  street  prison  at  Philadelphia  there  is  now  awaiting  his  trial,  for  felony,  a  boy 
of  eleven  years  of  age,  who  already  passed  a  year  in  the  penitentiary  of  New  Jersey 
for  horse  stealing:  during  this  period  the  only  lessons  he  received,  were  the  details  given  by 
his  fellow  convicts  of  their  exploits  ;  some  of  which  he  repeated  to  us,  with  a  satisfaction 
but  ill  repressed.  I  cannot  avoid  adding  to  this  note  an  extract  from  a  report  on  the  state 
of  the  French  prisons  made  by  Mr  Deappert,  which  strongly  exemplifies  the  necessity  of  a 
complete  separation  of  juvenile  from  other  offenders.  "  There  were  in  the  same  room,  at 
Douay,  several  youths,  who  had  been  sentenced  to  imprisonment  by  the  correctional  tribunal, 
together  with  men  of  different  ages,  and  also  a  man  condemned  to  death  for  murder:  he 
requested  to  speak  to  me  in  private  ;  "  I  wait,"  said  he,  "  the  moment  of  execution  ;  and 
since  you  are  the  first  person  who  has  visited  us,  I  wish  to  address  you  with  confidence,  and 
to  conceal  nothing  from  you.  I  am  guilty  of  the  crime  for  which  I  have  been  condemned; 
I  have  committed  robbery  and  murder.  From  my  infancy  my  parents  neglected  me.  I  fell 
into  bad  company  ;  my  undoing  was  completed  in  a  prison  ;  and  I  am  now  about  to  expiate 
all  my  faults.  Among  the  persons  whom  you  see  in  this  room  there  are  some  youths,  who, 
with  pain  I  observe,  are  preparing  themselves  for  the  commission  of  new  crimes,  as  soon  as 
their  term  of  confinement  expires.  If  you  could  get  them  removed  into  a  separate  room, 
this,  sir,  would  be  the  greatest  benefit  that  you  could  confer  upon  them." 

2  T 


346  INTRODUCTORY  REPORT  TO 

ends  of  punishment  and  example,  by  education  and  employment.  If 
this  be  wrong,  the  whole  plan  must  be  remodelled  ;  but  in  establishing 
it,  I  have  been  guided  by  something  better  than  the  best  reasoning.  In 
the  city  of  New  York  there  is  an  establishment  of  this  kind,  which 
can  never  be  visited  but  with  unmixed  emotions  of  the  highest  intellec- 
tual pleasure.  It  now  contains  one  hundred  and  twenty-five  boys  and 
twenty-nine  girls,  for  the  most  part  healthy,  cheerful,  intelligent,  in- 
dustrious, orderly,  and  obedient;  animated  with  the  certain  prospect  of 
becoming  useful  members  of  society,  who,  but  for  this  establishment, 
would  still  have  been  suffering  under  the  accumulated  evils  attendant  on 
poverty,  ignorance,  and  the  lowest  depravity,  with  no  other  futurity  be- 
fore them  than  the  penitentiary  or  the  gallows.  I  ought  not  to  omit 
mentioning  here,  that  the  female  department  is  superintended  by  a  visit- 
ing committee  of  ladies,  who,  at  regular  and  frequent  periods,  examine 
the  school,  converse  with  the  scholars,  encourage  the  diffident,  reprove 
the  disorderly,  reward  the  industrious,  and  inspire  all  with  their  own 
virtues.  The  code  I  submit,  invites  a  similar  superintendence,  from 
which  the  highest  advantages,  such  as  nothing  but  the  benign  influence 
of  female  character  can  give,  are  expected. 

The  plan  of  indenting  the  scholars  to  useful  trades  has  been  recom- 
mended, from  the  practical  effect  that  has  been  observed  at  New-York. 
It  might  at  first  be  supposed,  that  an  aversion  would  be  found  to  taking 
apprentices  from  such  a  place  ;  but  experience  has  proved  that  the  con- 
fidence inspired  by  the  mode  of  education  pursued,  is  so  great,  that 
applications  are  more  numerous,  for  children  of  both  sexes,  than  the 
rules  of  the  institution  will  permit  them  to  supply.  And,  although 
twenty-eight  boys  and  fifteen  girls  have  been  indented,  the  most  favour- 
able accounts  have  been  received  of  their  behaviour  ;  two  having 
received  what  they  thought  ill  usage  from  their  masters,  left  them,  but 
returned  to  the  school,  and  only  one  has  resumed  his  former  bad  habits. 
What  renders  the  reformation  of  these  children  the  more  extraordinary, 
is,  that  thirty  of  them  had  before  been  sentenced  to  the  penitentiary, 
from  one  to  five  different  times.  A  register  is  kept  of  the  behaviour 
of  the  different  boys,  and  of  as  much  of  their  previous  history  as  can 
be  discovered.  Extracts  from  this  are  annually  published,  and  they 
contain  a  number  of  facts  of  the  most  interesting  kind  ;  all  proving 
the  practical  utility  of  the  plan.  Some  of  these  are  selected  from  the 
last  report  of  the  managers(a). 

(a)  W.  H.  0. — This  boy's  history  exhibits  one  of  the  most  striking  instances  of  juvenile 
depravity  that  we  have  on  the  records  of  this  institution.  He,  at  the  early  age  of  nine 
years,  commenced  his  career  of  stealing,  and  with  the  assistance  of  some,  more  hardened 
and  older  in  crime  than  himself,  he  continued  it  for  three  years,  with  the  most  undeviating 
success.  Of  his  short  life,  two  and  a  half  years  in  three  separate  terms,  have  been  served 
in  the  penitentiary,  besides  having  been  several  times  in  bridewell.  The  associations  he 
formed  in  those  schools  of  vice,  instead  of  reclaiming  him,  served  only  to  strengthen  his 
vicious  propensities,  and,  at  his  discharge  from  them,  he  recommenced  his  depredatory  acts 
with  renewed  skill ;  in  short,  with  him  stealing  seemed  to  be  an  instinctive  principle.  Thus 
he  continued  until  the  establishment  of  this  institution.  He  fortunately  became  one  of  its  first 
inmates.  Upon  his  introduction  he  evinced  a  settled  determination  to  escape  (in  which  he 
succeeded  three  several  times).  The  most  rigid  treatment  was  for  a  long  time  successfully 
applied.  At  length  he  began  gradually  to  yield  to  the  restraints,  and  submit  to  the 
regulations  required  of  him  ;  from  January  to  December  1826,  he  so  far  improved  that  we 
considered  him  one  of  the  most  amiable  boys  in  the  house  ;  the  person  who  contracted  for 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  347 

It  will  be  observed,  that,  contrary  to  the  rules  laid  down  for  the 
penitentiary,  personal  castigation  is  permitted  in  the  school.  This 
exception  was  introduced  because  the  infliction  of  that  punishment  in 
childhood,  is  not  attended  with  the  degradation  which  characterises  it 
when  applied  to  adults  ;  because  it  is  permitted  to  teachers,  with  re- 
spect to  their  scholars  ;  to  masters,  as  respects  apprentices  ;  and 
because  the  rules  laid  down  for  regulating  the  punishment  are  such  as 
will  effectually  prevent  its  abuse.  Yet,  if  experience  should  prove,  as 
I  think  it  will,  that,  even  in  these  cases,  it  may  be  dispensed  with,  it 

his  services,  said,  that  his  attention  to  his  work  was  such  as  to  afford  him  much  plea- 
sure ;  that  he  was  entirely  obedient,  agreeable,  and  active  in  the  discharge  of  his  duties. 
Conceiving  that  the  object  of  the  institution,  in  the  effect  of  his  reformation,  was  completed, 
and  that  a  better  state  of  mind  could  not  be  effected  in  William,  he  was  indentured  to  a 
highly  respectable  mechanic,  living  in  Connecticut.  Some  time  previous  to  his  indenture, 
he  was  asked  whether  he  would  ever  redarken  his  character  by  the  commission  of  crime,  if 
selected  to  be  bound  out ;  his  reply  was,  that  he  was  then  influenced  by  the  wicked  one, 
but  that  he  now  felt  his  mind  to  be  in  a  different  channel ;  and  if  a  modest  and  humble  de- 
portment for  several  months,  together  with  a  knowledge  of  his  frequently  practising  devo- 
tional exercise,  are  proper  criterions  by  which  to  judge,  we  feel  perfectly  safe  in  saying  that 
William  was  truly  an  altered  boy.  Since  his  indenture,  a  very  favourable  report  has  been 
received  from  him. 

S.  T. — Aged  sixteen  years,  born  in  Patterson,  N.  J.;  he  lost  his  father  and  mother  when 
quite  young,  after  which  he  was  left  to  the  care  of  guardians,  who  neglected  him.  He  in  a  short 
time  acquired  a  degree  of  celebrity  among  his  companions,  by  his  skill  in  stealing  old  rope, 
iron,  copper,  &c.  from  around  the  docks.  His  career,  however,  was  made  short  by  the 
superintending  care  of  the  city  authority,  by  whom  he  was  committed  to  the  alms-house,  as 
a  vagrant.  He  twice  escaped  from  that  institution,  and  when  retaken  the  second  time,  he 
was  sent  here.  Soon  after  his  commitment  it  became  evident  that  the  discipline  of  the 
house  was  all  that  was  requisite  to  make  him  obedient.  After  conducting  himself  to  the 
entire  satisfaction  of  the  superintendent,  he  was  indented  to  a  farmer  in  the  country. 
Since  his  indenture,  we  have  been  informed  by  the  gentleman  with  whom  he  lives,  that  "  he 
is  industrious,  attentive  and  kind ;  and  such  is  the  state  of  his  mind,  as  relates  to  religion 
and  morality,  that  he  will  reprove  his  men  for  using  profane  language,  in  a  prompt,  though 
modest  and  becoming  manner,  often  referring  to  the  precepts  he  received  from  his  recent 
friends." 

D.  B.  L. — Aged  fifteen  years,  born  in  New  York,  committed  from  the  police,  on  suspi- 
cion of  having  stolen  a  shawl.  He  was  brought  up  in  the  vicinity  of  Bancker  street,  and 
for  some  months  played  the  tambourine  in  those  receptacles  of  vice  and  misery,  the  dancing- 
houses  of  Corlears  Hook.  He  acknowledges  having  stolen  some  few  articles,  but  denies 
stealing  the  article  for  which  he  was  sent  here.  From  the  time  he  was  committed  until  his 
discharge  he  conducted  in  an  entirely  satisfactory  manner.  In  October  he  was  indentured 
to  a  respectable  gentleman  residing  about  sixty  miles  north  of  this  city. 

L.  S. — Aged  about  sixteen  years,  born  in  Ireland  ;  his  parents  emigrated  to  this  country 
about  eight  years  ago.  His  father  has  since  died.  His  education  was  entirely  neglected 
by  his  parents,  and  the  choice  of  his  companions  left  exclusively  to  himself.  He  has  work- 
ed at  several  mechanical  branches  of  business,  to  none  of  which  his  restless  disposition 
could  attach  itself.  He  was  committed  to  the  Refuge  in  March,  1825,  from  the  police 
office,  for  stealing  a  copper  kettle,  for  which  he  had  been  confined  in  Bridewell  eight  days, 
where  he  had  been  four  times'  before.  The  character  of  a  notorious  thief  cannot  with 
justice  be  attached  to  this  boy,  though  he  had  been  a  habitual  pilferer  for  several  years. 
Upon  his  entry  into  the  house,  he  gave  no  evidence  of  a  disposition  palpably  wicked,  yet 
he  was  a  source  of  much  trouble  to  the  superintendent ;  in  mischief  he  was  almost  invaribly 
first ;  to  the  rules  and  regulations  of  the  house  he  was  perfectly  indifferent,  and  in  one  instance 
he  absconded.  After  a  few  days  he  was  returned,  severely  punished,  and  put  in  irons  for 
forty-three  days,  when  his  irons  were  taken  off.  In  December  his  improvement  was  so 


348  INTRODUCTORY  REPORT  TO 

ought  to  be  abolished.  But,  while  this  power  is  granted  by  law  to  the 
master  over  the  scholar  or  apprentice,  it  would  not  be  prudent  to  deny 
it  to  the  warden,  who  acts  in  this  capacity  towards  the  children  under 
his  care. 

There  is  also  another  difference  that  will  be  remarked,  in  comparing 
this  institution  with  the  penitentiary  :  here  public  worship  is  directed, 
while,  in  the  penitentiary,  no  provision  is  made  for  its  performance. 
The  advantage  to  be  derived  from  an  habitual  attendance  on  this  duty 
is  so  great,  that  it  ought  not  lightly  to  be  given  up  ;  but,  after  the  best 
reflection  I  could  give  to  the  subject,  I  determined  that  it  might  safely 
be  allowed  in  the  school,  but  could  not,  without  danger,  be  permitted 
in  the  penitentiary.  The  discipline  necessary  to  preserve  order  in  the 
work-shops,  and  during  the  hours  of  instruction,  will  be  sufficient  for 
the  same  purpose,  in  the  chapel,  during  divine  service.  In  the  habit 
of  seeing  and  conversing  with  each  other  during  the  week,  the  asso- 
ciation in  the  church,  on  Sunday,  will  not  be  made,  by  the  children, 
the  means  of  communicating  plans  for  escape,  or  other  unlawful  com- 
bination. But,  in  a  penitentiary,  instituted  for  solitary  confinement, 

great  that  he  was  promoted  to  the  situation  of  night  watch,  and  day  guard,  the  duties  of 
which  he  faithfully  performed  until  July  1826,  when  he  requested  to  be  sent  to  sea;  his  request 
was  complied  with,  and  he  was  indentured  to  a  highly  respectable  ship  owner  of  this  city. 
After  an  absence  of  three  months,  he  returned  to  the  Refuge  on  a  visit,  stated  that  he  was 
perfectly  contented  with  his  situation,  and  that  he  had  often  reflected  while  at  sea,  that,  in- 
stead of  enjoying  the  blessings  of  liberty,  he  might  hare  now  been  in  the  state  prison,  had  it 
not  been  for  the  establishment  of  a  House  of  Refuge. 

D.  S. — Aged  fifteen  years,  born  in  New  York ;  his  father  died  while  he  was  yet  an  infant ; 
his  mother  since  married  an  oysterman,  now  living  in  itte  vicinity  of  Bancker  street.  David 
has  lived  with  three  different  persons,  who  kept  oyster-cellars ;  after  leaving  them,  he  re- 
turned to  his  mother.  He  commenced  his  thefts  by  stealing  wood  from  about  the  docks  ; 
has  also  been  in  the  habit  of  stealing  old  junk,  copper,  &c.  He  has  been  three  several 
times  committed  to  bridewell,  the  last  time  for  stealing  a  copper  kettle,  in  company  with 
the  foregoing  boy  ;  it  was  for  this  offence  that  he  was  committed  to  the  Refuge.  He  was 
at  first  very  refractory,  constantly  plotting  how  to  escape,  and  endeavouring  to  persuade  others 
to  accompany  him.  He  was  for  some  months  treated  with  much  strictness ;  from  June 
1825  to  February  1826,  his  conduct  was  entirely  satisfactory  ;  at  this  time  an  opportunity 
offering  to  give  him  an  advantageous  situation,  it  was  deemed  incompatible  with  the  object 
of  the  institution  to  detain  him  longer.  He  was  consequently  indented  to  a  gentleman 
residing  in  the  western  part  of  this  state,  who,  in  a  letter  directed  to  his  mother,  two  months 
after  the  date  of  his  indenture,  says  he  has  much  reason  to  be  pleased  with  David's  conduct. 

J.  D.  S. — Aged  eleven  and  a  half  years,  born  in  New  York.  This  child,  notwithstanding 
his  extreme  youth,  has  committed  many  errors.  He  was  first  led  to  the  perpetration  of  crime 
by  the  persuasion  of  one  older  than  himself,  in  whose  company  he  stole  many  articles ;  he 
was  once  in  bridewell  for  stealing,  and  was  frequently  punished  by  his  parents,  but  to  no 
effect.  He  was  committed  here,  at  the  solicitation  of  his  father,  in  April  1825.  He  con- 
ducted himself  with  uniform  propriety  until  October  1826,  when  he  was  returned  to  his 
parents  for  the  purpose  of  indenturing  to  a  gentleman  who  was  instrumental  in  his  reforma- 
tion, and  who  was  well  acquainted  with  his  disposition.  Here  is  another  instance  in  which  the 
preservation  of  a  child  from  ruin  may  be  attributed  to  the  establishment  of  a  House  of  Refuge. 
Had  this  boy's  thieving  practices  been  permitted  to  degenerate  into  a  habit,  they  doubtless 
would  have  procured  for  him  a  residence  in  our  state  prison  or  penitentiary,  where  the  ob- 
ject is  punishment,  and  not  reformation  ;  he  must  have  been  thrown  in  the  company  of  old 
and  hardened  offenders,  the  contaminating  influence  of  whose  conversation  would  eventu- 
ally have  banished  every  virtuous  and  generous  sentiment  from  his  tender  bosom.  What 
reflecting  mind  but  must  admit  the  utility  of  such  an  institution,  and  what  generous  soul  but 
would  contribute  to  its  support  ? 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  349 

the  meeting  of  all  the  convicts  on  Sunday  would  be  entirely  inconsist- 
ent with  the  first  principles  of  the  plan  ;  order  could  not  be  preserved 
without  recourse  being  had  to  corporal  chastisement ;  the  convicts 
would  anticipate  the  return  of  their  periodical  re-union,  not  to  listen 
to  the  truths  of  religion,  but  to  enjoy  the  society  of  which  they  had 
been  deprived  ;  the  utmost  vigilance  could  not  prevent  communication 
by  whispers  or  signs;  they  would  become  acquainted  with  each  other's 
faces,  and  be  ready  to  renew,  after  discharge,  those  associations,  which 
it  is  one  object  of  the  plan  to  prevent ;  and  it  has  been  asserted,  and 
I  believe  with  truth,  that  most  of  the  combinations  for  insurrection 
and  escape  have  been  formed  in  the  chapel. 

In  all  these  institutions,  whether  for  restraint,  punishment  or  educa- 
tion, so  much  must  depend  on  the  integrity,  attention  and  ability,  of  the 
warden,  that  not  only  are  the  greatest  care  and  judgment  necessary  in 
selecting  him,  but  the  most  watchful  superintendence  after  he  is  chosen. 
It  may  be  stated  as  a  general  rule,  to  which,  unhappily,  there  are  few 
exceptions,  that,  if  neglect  in  the  performance  of  official  duties  incurs 
no  loss  of  emolument,  they  will  be  neglected,  unless  the  state  of  public 
opinion  is  such  as  to  make  it  an  equivalent  sanction;  this  last  is  a  pow- 
erful agent ;  but  it  cannot  always  be  depended  upon  ;  and  it  operates 
least  upon  those  that  are  most  in  want  of  a  supervising  power.  A 
sensibility  to  public  opinion  is  connected,  for  the  most  part,  with  a 
moral  sense  that  would,  of  itself,  enforce  a  performance  of  the  duty  ; 
and  a  lax  morality  is  seldom  attended  with  any  great  reverence  for  the 
opinions  of  others.  But,  in  framing  laws,  we  cannot  count  on  the  con- 
stant operation  of  this  high  sense  of  duty  or  regard  to  public  approba- 
tion. They  must  be  made  for  men  as  they  are  ;  and  unfortunately  the 
disposition  to  gain  as  much  as  possible,  with  as  little  trouble  as  possible, 
is  that  which  we  shall  find  most  general,  and  which,  therefore,  we  must 
counteract,  or  direct  to  our  purpose,  if  we  expect  our  institutions  to  be 
useful  and  permanent.  A  superintending  power,  therefore,  has,  in 
most  systems  of  law,  been  provided  to  secure  the  execution  of  official 
duty;  this  is  easily  done,  and  were  the  remedy  an  effectual  one,  nothing 
could  be  more  simple  than  this  branch  of  legislation  ;  but  what  can 
assure  us  that  the  supervisors  will  do  their  duty  ? 

Custodes  ipsos,  quis  custodiet  ? 

In  our  legislation,  we  way  create  a  system  of  successive  responsi- 
bilities and  inspections;  but  a  foundation  must  be  laid  for  the  last.  We 
may  place  the  weight  on  the  elephant,  and  support  him  by  the  tor- 
toise, but  here  our  theory,  with  that  of  the  Indian  cosmogonist,  ends. 
Sound  philosophy  alone  can,  in  both  cases,  direct  us  to  the  great 
principles,  which  effect  the  different  ends,  without  this  cumbrous  and 
useless  machinery.  Individual  interest  draws  all  to  a  central  point ;  a 
desire  to  promote  the  public  good,  enforced  by  the  fear  of  censure  and 
the  hope  of  applause,  gives  an  impetus  in  a  different  direction  ;  and 
these  powers  combined,  will  restrain  aberrations  from  the  circle  of  offi- 
cial duty  just  as  the  order  of  the  heavenly  bodies  is  preserved  by  the 
divergent  operation  of  mutual  attraction  and  the  projectile  force. 

Self-interest,  then,  must  be  so  combined  with  the  public  good,  as  to 
make  them  inseparable;  and  public  inspection  must  be  secured,  to  keep 
this  great  spring  of  human  action  in  its  proper  direction.  This  has  been 
endeavoured  in  the  plan  of  administration  for  the  several  houses  of  con- 
finement provided  for  by  this  system. 

•:      i 


350  INTRODUCTORY  REPORT  TO 

The  whole  are  placed  under  the  superintending  care  of  the  same  board, 
because,  being  parts  of  the  same  system,  its  general  principles  could 
only  be  enforced  by  a  common  head.  The  number  of  the  institutions 
required  an  attention  that  a  single  person  could  not  well  perform  ;  a 
board  of  inspection,  therefore,  was  created,  and,  considering  the  nature 
of  the  duties,  the  number  of  five  was  fixed  on  as  that  which  would  best 
unite  the  advantages  of  deliberation  with  the  requisite  despatch  of  busi- 
ness ;  and  a  distribution  of  the  duties  into  classes,  that  some  might  be 
performed  by  one  member,  making  two  necessary  for  others,  and  a 
majority  for  those  which  were  most  important,  was  considered  as  a 
convenient  and  safe  arrangement.  This  board,  in  addition  to  its  gene- 
ral superintending  power,  has  the  direct  management  of  all  the  pecu- 
niary concerns  of  the  several  prisons,  but  under  regulations,  which,  it 
is  thought,  must  prevent  the  possibility  of  any  corrupt  appropriation  or 
negligent  dilapidation  of  the  funds.  Among  other  precautions,  is  one 
that  ought,  I  think,  to  be  adopted  in  all  cases  of  trust,  whether  arising 
from  office,  or  contract,  or  testamentary  disposition;  the  deposite  of  all 
moneys  held  for  another,  or  for  the  public  or  any  institution,  in  a  safe 
public  bank,  in  the  name  of  the  trust,  or  of  the  person  in  his  quality  as 
officer  or  agent,  to  be  drawn  out  only  by  checks,  expressing  the  pur- 
pose to  which  the  money  is  to  be  applied,  and  making  it  a  criminal 
breach  of  trust  if  the  deposite  is  not  made,  or  if  the  funds  are  drawn 
for  any  other  purpose  than  that  of  the  person  or  institution  for  whose 
use  it  was  received.  The  advantages  of  such  an  arrangement  in  com- 
mercial agencies,  and  private  and  public  trusts,  need  not  be  descanted 
on  here  :  it  is  intended,  in  connexion  with  other  provisions,  prohibiting 
any  kind  of  concern  in  purchases  or  sales  made  for  the  prisons,  any 
profit  or  convenience  from  the  employment  of  the  prisoners,  to  take 
away  all  temptation  of  making  the  office  a  pecuniary  speculation,  and 
what  is  of  as  much  consequence,  perhaps,  to  prevent  its  being  thought 
one. 

The  board  of  inspection  must  be  permanent ;  its  duties  are  arduous  • 
they  require  experience  as  well  as  diligence  ;  the  undivided  attention 
of  the  members  must  be  given  to  the  subject;  the  close  and  unremitted 
labours  required  by  the  important  business  entrusted  to  them,  cannot 
be  expected  to  be  gratuitously  given.  Few  men,  in  our  state  of  society, 
can  afford  to  divert  the  time  required  for  this  purpose  from  their  pri- 
vate affairs  ;  and  those  who  can  afford  it,  are  not  always  the  best  fitted 
for  the  task.  They  must,  therefore,  be  paid,  and  so  liberally  paid,  as 
to  command  the  talent  and  integrity  required.  Philanthropy,  public 
spirit,  humanity  or  religion,  may  inspire  individuals  to  volunteer  ser- 
vices ;  but  it  is  a  natural  tendency  of  zeal  gradually  to  cool,  when 
the  service  which  excited  it  is  one  requiring  patient  attention,  a  daily 
intercourse  with  the  most  degraded  of  our  species,  and  a  close  attention 
to  dull  detail,  more  especially  when  it  requires  no  exertion  of  those 
talents  that  command  public  applause:  besides  this,  if  the  service  is 
unpaid,  its  negligent  performance  rarely  incurs  the  penalty  of  public 
censure,  which  never  falls  very  heavy  on  those  who  have  gratuitously 
given  any  part  of  their  time  or  attention  to  the  business ;  whereas,  the 
salary  being  an  equivalent  for  the  service,  legal  punishment,  as  well  as 
loss  of  reputation,  will  generally  attend  neglect.  The  particular  powers 
given  to  the  board  of  inspectors,  need  not  be  here  detailed  :  they  are, 
it  is  thought,  clearly  designated  in  the  text.  As  theirs  is  chiefly  a  $u- 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  351 

pervising  power,  and  not  so  direct  an  agency  upon  the  prisoners  as  that 
of  the  other  officers,  it  was  not  deemed  necessary  to  give  them  any 
interest  in  the  labour  of  the  convicts ;  the  number,  too,  of  their  mem- 
bers would  have  rendered  this  extremely  onerous  to  the  institution. 
But  with  the  warden  it  was  different ;  to  him  it  was  deemed  necessary 
to  apply  those  principles  I  have  endeavoured  to  establish,  which  make 
the  interest  of  the  officer  and  of  the  public  to  coincide.  The  interest  of 
the  public  is,  first,  that  all  the  regulations  in  the  code,  for  punishment 
and  reformation,  should  be  strictly  observed  ;  secondly,  that  as  much 
as  possible  of  the  expense  of  the  institution  should  be  paid  by  the  labour 
of  the  convicts.  To  give  the  warden  an  interest  in  the  first  branch, 
he  has  a  premium  on  the  decrease  of  reconvictions,  the  best  mode  of 
testing  the  efficiency  of  the  system.  To  stimulate  him  in  promoting 
the  industry  and  skill  of  the  convicts,  he  has  a  per  centage  on  the  gross 
amount  of  their  labour  ;  while  the  superintendence  of  the  inspectors, 
their  periodical  examination  of  the  prisoners,  and  of  the  other  officers, 
the  observation  of  the  chaplain  and  physician,  and  of  the  official  visiters, 
will  effectually  prevent  his  urging  that  labour  by  any  other  means,  or 
in  any  greater  degree,  than  is  prescribed  by  the  code.  It  is  also  a  great 
object,  that  by  preserving  the  health  of  the  prisoners,  the  punishment 
should  not  be  carried  further  than  is  directed  by  the  sentence  ;  for  this 
purpose,  cleanliness,  wholesome  food,  exercise  and  proper  relaxation 
from  labour,  are  prescribed.  To  enforce  their  execution,  the  proper 
system  of  inspection  is  provided  ;  and  to  combine  private  interest  and 
the  love  of  distinction  in  the  performance  of  this  duty,  honorary  and 
useful  premiums  are  given  for  different  grades  of  decrease  in  the  usual 
mortality  of  the  prisons.  These  rewards  are  extended  to  all  the  officers 
whose  agency  can  at  all  contribute  to  the  end. 

It  may  be  necessary,  before  the  conclusion  of  this  report,  to  give 
some  idea  of  the  number  of  officers,  and  the  duties  of  those  which  have 
not  yet  been  mentioned. 

The  plan,  as  has  been  seen,  comprehends, 

A  House  of  Detention,  with  two  departments  ; 

A  Penitentiary  ; 

A  School  of  Reform  ; 

A  House  of  Refuge  and  Industry,  with  two  departments. 

All  of  these  are  under  the  general  superintendence  of  five  inspectors; 
one  warden  and  one  matron  will  be  required  for  each  institution.  One 
chaplain  and  one  physician  will  be  sufficient  for  the  four  ;  a  clerk  for 
the  Penitentiary;  one  teacher  for  the  School  for  Reform  and  another  for 
the  Penitentiary.  In  the  other  institutions,  the  detention  is  not  long 
enough  to  require  a  regular  establishment  for  education,  and  one  of  the 
inmates  will  always  be  found  competent  for  this  purpose  ;  so  that,  in- 
dependent of  the  underkeepers,  the  number  of  which  will  depend,  in 
some  measure,  on  that  of  the  prisoners,  the  four  institutions  will  require 
thirteen  officers.  The  manner  in  which  the  prisoners  are  proposed  to 
be  confined,  will  preclude  the  necessity  of  a  military  guard;  and  unless 
the  number  shall  multiply  much  beyond  our  hopes  and  reasonable  ex- 
pectations, one  underkeeper  for  the  House  of  Detention,  one  for  the 
School  of  Reform,  two  for  the  House  of  Industry,  and  six  for  the  Peni- 
tentiary, ten  only  in  all,  will  be  required.  In  this  calculation,  neither 
the  inspectors  nor  their  agent  are  included. 


352  INTRODUCTORY  REPORT  TO 

A  regulation  of  much  importance  in  the  code  may  need  some  ex- 
planation, which  has  not  been  given  in  its  place.  Solitary  confinement, 
although  accompanied  by  the  permission  to  labour  in  an  uncovered 
court,  may,  if  the  labour  be  sedentary,  be  injurious  to  the  health.  To 
counteract  this  effect,  a  machine  is  directed  to  be  made  that  will  require 
strong  muscular  power  to  put  in  motion  ;  and  at  this,  each  of  the  male 
prisoners  is  directed  to  work,  but  only  for  one  hour  in  each  day.  This 
is  made  compulsory;  but  as  the  only  penalty  is  solitary  confinement  to 
the  cell,  and  as  it  is  considered  and  intended  only  as  a  preservation  to 
the  health,  this  compulsion  is  not  at  war  with  the  principles  before  laid 
down  on  that  subject.  The  prisoners  are  to  be  brought  to  the  machine 
separately,  and  it  must  be  so  contrived  as  not  to  permit  them  to  see  or 
hear  each  other  while  at  work.  Its  effects  will  be  not  only  to  preserve 
general  health,  but  to  fortify  the  muscular  powers,  and  fit  the  convict 
on  his  discharge  for  any  species  of  laborious  employment. 

The  tread-mill,  although  a  favourite  engine  of  punishment  in  many 
institutions,  finds  no  place  in  this,  for  the  following  reasons  :  it  cannot 
be  employed  without  breaking  in  upon  the  system  of  solitary  confine- 
ment, which  is  the  basis  of  the  system  ;  its  injurious  effects  upon  the 
health  are  supported  by  strong  testimony(#),  and  although  there  is  a 
contrariety  of  evidence  on  the  subject(6),  yet  it  may  be  fairly  inferred 
from  the  whole,  that  it  does  not  fortify  the  constitution  and  prepare 
the  convict  for  any  of  the  ordinary  pursuits  of  laborious  life,  the  prin- 
cipal muscular  action  being  in  the  legs  only.  It  teaches  the  convict 
nothing  that  can  be  useful  to  him  on  his  discharge.  It  is  not  a  profita- 
ble employment  of  human  power.  If  it  have  any  effect  on  the  morals, 
it  must  be  a  bad  one,  from  the  associations  inseparable  from  it,  and  from 
the  degradation  which  is  considered  to  be  attached  to  it.  As  a  punish- 
ment it  must  be  unequal  ;  to  give  it  the  velocity  necessary  to  punish 
one  of  a  robust  constitution,  would  make  it  a  torture  to  a  weaker 
convict. 

The  Code  of  Reform  and  Prison  Discipline,  and  the  reasoning  in 
support  of  its  provisions,  are  now  before  the  legislature ;  their  wisdom 
will  determine  on  the  propriety  of  its  adoption.  Many  parts  of  the 
plan  have  at  different  times  been  proposed,  and  some  of  them  have  been 
partially  executed,  but  they  have  never  before  been  consolidated  and 
presented  as  component  parts  of  a  whole  system;  a  characteristic  which 
it  is  thought  constitutes  its  chief  value  :  for  it  must  be  apparent,  from 
the  nature  of  the  subject,  that,  without  a  continuity  of  operation,  as 
well  as  uniformity  of  principle  in  the  plan,  no  infliction  of  punishment 
or  discipline  for  reformation  can  have  any  great  effect.  In  all  legisla- 
tion we  must  first  form  a  clear  idea  of  that  which  we  wish  to  accomplish, 
and  then  determine  on  the  best  means  of  effecting  it.  These  being 
well  understood,  they  must  be  explicitly  enounced,  not  only  for  our 
own  guidance  in  forming  the  plan,  but  for  that  of  our  successors  in 
correcting,  of  the  judges  in  expounding,  and  of  our  constituents  in 
obeying  it.  In  that  which  I  offer,  its  great  object  has  been  constantly 
kept  in  view,  and  has  been  repeated  perhaps  oftener  than  was  necessary; 
and  the  means  proposed  to  effect  it  are  such  only  as  have  been  recom- 
mended either  by  experience  or  the  maturest  reflection.  But,  as  this 

(a)  Sir  John  Cox  Hippeslie  on  the  tread-mill. 

(6)  Sixth  Report  of  the  Society  for  the  Improvement  of  Prison  Discipline,  appendix 


THE  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  353 

object  is  the  prevention  of  crime,  it  is  clear  that  this  would  be  but  im- 
perfectly effected  by  any  discipline  applied  after  conviction  only.  Con- 
viction supposes  the  prior  existence  of  crime,  and  the  discipline  that 
corrects  it  is  punishment ;  but  punishment  is  only  one  of  the  means  of 
attaining  the  end  of  preventing  crimes :  to  avoid  their  commission, 
therefore,  we  must  go  one  step  further  back ;  we  must  prevent  con- 
taminating association  before  trial,  more  carefully  than  we  would  after 
it ;  we  must  never  confound  innocence  with  unconvicted  guilt,  by  im- 
posing any  unnecessary  restraint  upon  either.  But  even  accusation  is 
most  commonly  founded  on  the  evident  commission  of  an  offence,  al- 
though trial  is  necessary  to  designate  the  offenders.  We  must  begin, 
then,  at  an  earlier  stage  in  our  efforts  to  prevent  it ;  we  must  relieve 
that  extreme  want  which  is  sometimes  the  cause,  and  oftener  the  pre- 
tence for  crime;  and  we  must  find  employment  for  the  idleness  which 
generally  produces  it.  And  when  this  is  done,  our  work  is  not  yet 
complete  ;  religious,  moral  and  scientific  instruction  must  be  not  only 
provided  but  enforced,  in  order  to  stamp  on  the  minds  of  the  people 
that  character,  that  public  feeling,  and  those  manners,  without  which 
laws  are  but  vain  restraints. 

The  recapitulation  of  the  several  institutions  embraced  by  the  Code 
of  Reform  and  Prison  Discipline,  has  been  made  to  show  their  close 
connexion,  and  that  each  part  is  so  necessary  to  carry  into  effect  the 
great  objects  of  the  system,  that  an  omission  of  any  one  would,  in  a  great 
measure,  defeat  the  good  effect  that  might  be  expected  from  the  others. 
If  we  mean  to  guard  the  community  from  the  inroads  of  crime,  every 
avenue  must  be  defended.    A  besieged  city,  fortified  on  one  side,  leav- 
ing the  others  open  to  hostile  attacks,  would  be  a  just  image  of  a  coun- 
try in  which  laws  are  made  to  eradicate  offences  by  punishments  only, 
while  they  invite  them  by  neglect  of  education,  by  the  toleration  of 
mendicity,  idleness,  vagrancy,  and  the  corrupting  associations  of  the 
accused  before  trial,  as  well  as  after  conviction.     Yet  such  is  the  la- 
mentable state  of  criminal  jurisprudence,  that  all  nations  are  more  or 
less  in  this  state.     Here  great  severity  is  used  to  punish  offences,  but 
no  means  are  provided  to  prevent  them :  there  mild  punishments  and 
a  reformatory  discipline  are  applied  after  judgment ;  but  severe  impri- 
sonment and  contaminating  associations  are  indiscriminately  inflicted 
on  the  innocent  and  on  the  guilty  before  trial.     Between  some  states 
the  contest  seems  which  shall  raise  the  greatest  revenue  from  the  labour 
of  the  convicts  :  in  others  the  object  is  to  degrade  and  make  them  feel 
their  misery.     No  where  has  a  system  been  established  consisting  of 
a  connected  series  of  institutions  founded  on  the  same  principle  of 
uniformity,  directed  to  the  same  end  ;  no  where  is  criminal  jurispru- 
dence treated  as  a  science ;  what  goes  by  that  name,  consists  of  a  col- 
lection of  dissimilar,  unconnected,  sometimes  conflicting  expedients  to 
punish  different  offences  as  they  happen  to  prevail ;  of  experiments  di- 
rected by  no  principle  to  try  the  effect  of  different  penalties;  of  perma- 
nent laws  to  repress  temporary  evils;  of  discretionary  power,  sometimes 
with  the  blindest  confidence  vested  in  the  judge,  and  at  others  with  the 
most  criminal  negligence  given  to  an  officer  of  executive  justice.     All 
these  and  other  incongruities  would  cease,  were  the  lawgiver  to  form 
correct  principles  ;  enounce  them  for  his  own  guidance  and  that  of  his 
successors;  and,  with  them  constantly  before  his  eyes,  arrange  his  sys- 
tem of  criminal  jurisprudence  into  its  natural  divisions,  by  providing 
for  the  poor,  employing  the  idle,  educating  the  ignorant,  defining  of- 
2  U 


354  INTRODUCTORY  REPORT,  &C. 

fences  and  designating  their  correspondent  punishment,  regulating  the 
mode  of  procedure  for  preventing  crimes  and  prosecuting  offenders,  and 
giving  precise  rules  for  the  government  and  discipline  of  prisons. 

With  such  a  system  it  may  reasonably  be  expected,  not  that  offences 
will  be  eradicated,  but  that  their  recurrence  will  be  much  less  frequent, 
and  that  the  rare  spectacle  will  be  witnessed  of  a  retrograde  movement 
in  vice  and  crime.  But  the  desultory  attempts  which  have  been  made, 
and  are  daily  making,  to  carry  some  of  its  detached  parts  into  execu- 
tion, do  but  retard  the  progress  and  endanger  the  success  of  reform  ; 
they  are  troublesome,  they  are  expensive;  the  false  reliance  that  is  placed 
upon  them  by  their  advocates,  excites  high  expectations,  which  must 
be  disappointed,  because  a  disease  pervading  the  system  cannot  be  cured 
by  topical  remedies;  and  the  disappointment  produces  despair  of  final 
success,  an  abandonment  of  the  plan  of  reformation,  and  an  inclination 
to  return  to  the  old  sanguinary  system. 

The  code  now  submitted  completes  the  System  of  Penal  Law,  which 
is  respectfully  offered  for  consideration. 

The  task  was  undertaken  with  an  unfeigned  distrust  of  my  own 
powers,  which  nothing  could  have  conquered  but  the  conviction  that 
a  simple  enumeration  and  development  of  the  principles  on  which  the 
system  is  founded,  would  force  a  conviction  of  their  truth. 

It  has  been  prosecuted  with  laborious  and  unremitted  application  for 
several  years,  with  a  respectful  attention  to  the  opinions  of  others,  and 
a  close  observation  of  practical  results. 

Its  conclusion  was  attended  with  the  gratifying  consciousness  of 
having  taken  every  precaution  to  guard  against  the  pride  of  opinion, 
and  neglected  no  means  that  could  be  suggested  by  the  deepest  sense 
of  its  importance,  and  a  religious  desire  that  it  might  advance  private 
happiness,  by  establishing  the  true  principles  of  public  justice. 

It  is  now  respectfully  offered  for  consideration,  in  the  hope  that 
after  legislative  wisdom  shall  have  supplied  the  omissions,  and  corrected 
the  errors  of  the  work,  it  may  be  made  the  basis  of  a  system,  by  which 
instruction  may  be  promoted,  idleness  and  vice  repressed,  crimes  di- 
minished, and  the  sum  of  human  happiness  increased. 

EDWARD  LIVINGSTON. 


A  SYSTEM  OF  PENAL  LAW. 


INTRODUCTORY    TITLE. 


CHAPTER  I, 


Preamble. 

No  act  of  legislation  can  be,  or  ought  to  be  immutable.  Changes  are 
required  by  the  alteration  of  circumstances  ;  amendments,  by  the  im- 
perfection of  all  human  institutions;  but  laws  ought  never  to  be  changed 
without  great  deliberation,  and  a  due  consideration  as  well  of  the 
reasons  on  which  they  were  founded,  as  of  the  circumstances  under 
which  they  were  enacted.  It  is  therefore  proper,  in  the  formation  of 
new  laws,  to  state  clearly  the  motives  for  making  them,  and  the  princi- 
ples by  which  the  framers  were  governed  in  their  enactment.  With- 
out a  knowledge  of  these,  future  legislatures  cannot  perform  the  task 
of  amendment,  and  there  can  be  neither  consistency  in  legislation,  nor 
uniformity  in  the  interpretation  of  laws. 

For  these  reasons  the  general  assembly  of  the  state  of  Louisiana  de- 
clare, that  their  objects  in  establishing  the  following  code,  are — 

To  remove  doubts  relative  to  the  authority  of  any  parts  of  the  penal 
law  of  the  different  nations  by  which  this  state,  before  its  independence, 
was  governed.  ' 

To  embody  into  one  law  and  to  arrange  into  system  such  of  the 
various  prohibitions  enacted  by  different  statutes  as  are  proper  to  be  re- 
tained in  the  penal  code. 

To  include  in  the  class  of  offences,  acts  injurious  to  the  state  and  its 
inhabitants,  which  are  not  now  forbidden  by  law. 

To  abrogate  the  reference,  which  now  exits,  to  a  foreign  law  for  the 
definition  of  offences  and  the  mode  of  prosecuting  them. 

To  organize  a  connected  system  for  the  prevention  as  well  as  for  the 
prosecution  and  punishment  of  offences. 

To  collect  into  written  codes,  and  to  express  in  plain  language,  all  the 
rules  which  it  may  be  necessary  to  establish,  for  the  protection  of  the 
government  of  the  country,  and  the  person,  property,  condition,  and 
reputation  of  individuals  ;  the  penalties  and  punishments  attached  to  a 
breach  of  those  rules;  the  legal  means  of  preventing  offences,  and  the 
forms  of  prosecuting  them  when  committed;  the  rules  of  evidence,  by 
which  the  truth  of  accusations  are  to  be  tested;  and  the  duties  of  exe- 
cutive and  judicial  officers,  jurors  and  individuals,  in  preventing,  pro- 
secuting, and  punishing  offences:  to  the  end  that  no  one  need  be  igno- 
rant of  any  branch  of  criminal  jurisprudence,  which  it  concerns  all  to 
know. 


358  SYSTEM  OF  PENAL  LAW. 

And  to  change  the  present  penal  laws,  in  all  those  points  in  which 
they  contravene  the  following  principles,  which  the  general  assembly 
consider  as  fundamental  truths,  and  which  they  have  made  the  basis  of 
their  legislation  on  this  subject,  to  wit  : 

Vengeance  is  unknown  to  the  law.  The  only  object  of  punishment 
is  to  prevent  the  commission  of  offences  :  it  should  be  calculated  to 
operate. 

First,  on  the  delinquent,  so  as  by  seclusion  to  deprive  him  of  the  pre- 
sent means,  and  by  habits  of  industry  and  temperance,  of  any  future  de- 
sire, to  repeat  the  offence. 

Secondly,  on  the  rest  of  the  community,  so  as  to  deter  them  by  the 
example,  from  a  like  contravention  of  the  laws.  No  punishments, 
greater  than  are  necessary  to  effect  these  ends,  ought  to  be  inflicted. 

No  acts  or  omissions  should  be  declared  to  be  offences,  but  such 
as  are  injurious  to  the  state,  to  societies  permitted  by  the  laws,  or  to  in- 
dividuals. 

But  penal  laws  should  not  be  multiplied  without  evident  necessity  ; 
therefore  acts,  although  injurious  to  individuals  or  societies,  should  not 
be  made  liable  to  public  prosecution,  when  they  may  be  sufficiently 
repressed  by  private  suit. 

From  the  imperfection  of  all  human  institutions,  and  the  inevitable 
errors  of  those  who  manage  them,  it  sometimes  happens,  that  the  inno- 
cent are  condemned  to  suffer  the  punishment  due  to  the  guilty.  Pun- 
ishments should,  therefore,  be  of  such  a  nature  that  they  may  be  re- 
mitted, and  as  far  as  possible  compensated,  in  cases  where  the  injus- 
tice of  the  sentence  becomes  apparent. 

Where  guilt  is  ascertained,  the  punishment  should  be  speedily  in- 
flicted. 

Penal  laws  should  be  written  in  plain  language,  clearly  and  unequi- 
vocally expressed,  that  they  may  neither  be  misunderstood  nor  pervert- 
ed ;  they  should  be  so  concise,  as  to  be  remembered  with  ease;  and  all 
technical  phrases,  or  words  they  contain,  should  be  clearly  defined. 
They  should  be  promulgated  in  such  a  manner  as  to  force  a  knowledge 
of  their  provisions  upon  the  people;  to  this  end,  they  should  not  only 
be  published,  but  taught  in  the  schools;  and  publicly  read  on  stated 
occasions. 

The  law  should  never  command  more  than  it  can  enforce.  Therefore, 
whenever,  from  public  opinion,  or  any  other  cause,  a  penal  law  cannot 
be  carried  into  execution,  it  should  be  repealed. 

The  accused,  in  all  cases,  should  be  entitled  to  a  public  trial,  conducted 
by  known  rules,  before  impartial  judges  and  an  unbiassed  jury;  .to 
a  copy  of  the  act  of  accusation  against  him  ;  to  the  delay  necessary  to 
prepare  for  his  trial  ;  to  process  to  enforce  the  attendance  of  his  own 
witnesses;  and  to  an  opportunity  of  seeing,  hearing,  and  examining  those 
who  are  produced  against  him;  to  the  assistance  of  counsel  for  his  de- 
fence; to  free  communication  with  such  counsel,  if  in  confinement,  and 
to  be  bailed  in  all  cases,  except  those  particularly  specified  by  law.  No 
presumption  of  guilt,  however  violent,  can  justify  the  infliction  of  any 
punishment  before  conviction,  or  of  any  bodily  restraint  greater  than 
is  necessary  to  prevent  escape  ;  and  the  nature  and  extent  of  this  re- 
straint should  be  determined  by  law. 

Perfect  liberty  should  be  secured  of  hearing  and  publishing  a  true 
account  of  the  proceedings  of  criminal  courts,  limited  only  by  such  re- 


SYSTEM  OF  PENAL  LAW.  359 

strictions  as  morality  and  decency  require  ;  and  no  restraint  whatsoever 
should  be  imposed  on  the  free  discussion  of  the  official  conduct  of  the 
judges  and  other  ministers  of  justice,  in  this  branch  of  government. 

Such  a  system  of  procedure,  in  criminal  cases,  should  be  established 
as  to  be  understood  without  long  study;  it  should  neither  suffer  the 
guilty  to  escape  by  formal  objections,  nor  involve  the  innocent  in  diffi- 
culties, by  errors  in  pleading. 

For  this  purpose,  amendments  should  be  permitted  in  all  cases, 
where  neither  the  accused  nor  the  public  prosecutor  can  be  surprised. 

Those  penal  laws  counteract  their  own  effect,  which,  through  a  mis- 
taken lenity,  give  greater  comforts  to  a  convict  than  those  which  he 
would  probably  have  enjoyed,  while  at  liberty. 

The  power  of  pardoning  should  be  only  exercised  in  cases  of  innocence 
discovered,  or  of  certain  and  unequivocal  reformation. 

Provision  should  be  made  for  preventing  the  execution  of  intended 
offences,  whenever  the  design  to  commit  them  is  sufficiently  apparent. 

The  remote  means  of  preventing  offences,  do  not  form  the  subject 
of  penal  laws.  The  general  assembly  will  provide  them  in  their  pro- 
per place.  They  are  the  diffusion  of  knowledge,  by  the  means  of 
public  education,  and  the  promotion  of  industry,  and  consequently  of 
ease  and  happiness  among  the  people. 

Religion  is  a  source  of  happiness  here,  and  the  foundation  of  our 
hopes  of  it  hereafter  ;  but  its  observance  can  never,  without  the  worst 
of  oppression,  form  the  subject  of  a  penal  code.  All  modes  of  belief, 
and  all  forms  of  worship,  are  equal  in  the  eye  of  the  law  ;  when  they 
interfere  with  no  private  or  public  rights,  all  are  entitled  to  equal  pro- 
tection in  their  exercise. 

Whatever  may  be  the  majority  of  the  professors  of  one  religion  or 
sect  in  the  state,  it  is  a  persecution  to  force  any  one  to  conform  to  any 
ceremonies,  or  to  observe  any  festival  or  day,  appropriated  to  worship 
by  the  members  of  a  particular  religious  persuasion  :  this  does  not  ex- 
clude a  general  law,  establishing  civil  festivals  or  periodical  cessations 
from  labour  for  civil  purposes  unconnected  with  religious  worship,  or 
the  appointment  of  particular  days  on  which  citizens  of  all  persuasions 
should  join,  each  according  to  the  rites  of  his  own  religion,  in  render- 
ing thanks  to  God  for  any  signal  blessing,  or  imploring  his  assistance 
in  any  public  calamity. 

The  innocent  should  never  be  made  to  participate  in  the  punishment 
inflicted  on  the  guilty;  therefore,  no  such  effects  should  follow  convic- 
tion as  to  prevent  the  heir  from  claiming  an  inheritance  through  or  from 
the  person  convicted.  Still  less  should  the  feelings  of  nature  be  con- 
verted into  instruments  of  torture,  by  denouncing  punishment  against 
the  children,  to  secure  the  good  conduct  of  the  parent. 

Laws  intended  to  suppress  a  temporary  evil  should  be  limited  to  the 
probable  time  of  its  duration,  or  carefully  repealed  after  the  reason  for 
enacting  them  has  ceased. 


360  SYSTEM  OF  PENAL  LAW. 


CHAPTER  II. 


Plan  and  division  of  the  system  of  penal  law. 

Art.  1.  This  system  comprises  four  distinct  codes,  and  a  Book  of 
Definitions.  The  first,  called  the  CODE  OP  CRIMES  AND  PUNISHMENTS, 
is  divided  into  two  books,  containing  : — General  Principles  ;  and  the 
description  of  all  acts  or  omissions  that  are  declared  to  be  offences ; 
with  the  punishment  assigned  to  each. 

Art.  2.  The  second  is  called  the  CODE  OF  CRIMINAL  PROCEDURE. 
It  is  divided  into  two  books.  It  contains  the  means  provided  for  pre- 
venting offences  that  are  apprehended,  and  for  repressing  those  that 
exist ;  and  it  directs  the  mode  of  proceeding  for  bringing  offenders  to 
justice. 

Art.  3.  The  third  is  the  whole  law  of  evidence,  applicable  as  well 
to  civil  as  to  penal  cases,  and  is  called  the  CODE  OF  EVIDENCE. 

Art.  4.  The  fourth  contains  a  system  of  prison  discipline,  in  all  the 
stages  in  which  imprisonment  is  used,  either  as  the  means  of  detention 
or  punishment.  It  is  designated  as  the  CODE  OF  REFORM  AND  PRISON 
DISCIPLINE. 

Art.  5.  The  concluding  division  of  the  system  is  a  BOOK  OF  DEFI- 
NITIONS, which  defines  all  the  technical  words  or  phrases  that  are  used 
in  the  several  codes. 


CHAPTER  HI. 


Introductory  notice. 

Art.  6.  Whenever  the  office,  trust,  state,  or  relation,  of  tutor,  ward, 
administrator,  executor,  ancestor,  heir,  parent,  child,  ascendant,  de- 
scendant, minor,  infant,  master,  or  servant,  and  the  relative  pronouns, 
he  or  they,  as  referring  to  them,  are  used,  they  are  intended  to  mean 
as  well  females  as  males,  standing  in  those  relations,  or  exercising  the 
same  offices,  trusts,  or  duties,  unless  the  contrary  be  expressed. 

Art.  7.  The  general  terms — whoever ;  any  person  ;  any  one  ;  and 
the  relative  pronouns — he  or  they,  when  they  refer  to  them,  are  in- 
tended to  include  females  as  well  as  males,  unless  there  is  some  express- 
ion to  the  contrary.  The  word  man  is  used  in  this  system,  not  as  a 
generical  term,  but  to  express  a  person  of  the  male  sex,  of  whatever 
age.  The  term  woman  includes  females  of  every  age. 

Art.  8.  Whenever  any  thing  is  forbidden  or  directed,  by  using  the 
general  terms — any  one  ;  one  ;  any  person  ;  whoever  ;  or  the  relative 
pronoun— he;  referring  to  any  such  general  term,  the  same  prohibition 
or  direction  (if  the  contrary  be  not  expressed)  is  extended  to  more 
persons  than  one,  doing  or  omitting  the  same  act. 

Art.  9.  Whenever  any  thing  is  directed  or  forbidden  with  respect 
to  one  object  or  thing,  the  same  direction  or  prohibition  extends  to 


SYSTEM  OF  PENAL  LAW.  361 

more  than  one  of  the  same  objects  or  things,  and  a  direction  or  prohi- 
bition as  to  more  objects  than  one,  includes  the  same  prohibition  as  to 
a  single  one  of  the  same  objects. 

Art.  10.  All  words  printed  in  small  capitals,  are  defined  and  ex- 
plained in  the  Book  of  Definitions  ;  and  in  all  other  parts  of  the  system 
are  used  in  no  other  sense  than  that  given  to  them  by  such  definition 
or  explanation. 

Art.  11.  Every  word  or  phrase,  other  than  those  so  printed,  is  to  be 
taken  and  construed  in  the  sense  in  which  it  is  used  in  common  par- 
lance, taken  in  connexion  with  the  context,  and  the  subject  relative  to 
which  it  is  employed. 

Art.  12.  It  is  not  intended  that  each  article  should  contain  in  itself 
a  complete  expression  of  legislative  will,  on  the  subject  of  which  it 
treats,  independent  of  the  other  articles  of  the  same  section  ;  the  whole 
are  to  be  considered  together  ;  to  avoid  repetition,  a  provision  in  one 
article  sometimes  relates  to  something  expressed  in  another  ;  an  exam- 
ple of  which  is  found  in  the  article  immediately  preceding  this,  where 
the  words  tl  so  printed"  relate  to  printing  in  "  small  capitals,"  provided 
for  in  the  section  preceding  it. 

Art.  IS.  Whenever  the  degrees  of  relationship  between  persons  are 
referred  to,  the  degrees  by  AFFINITY,  as  well  as  CONSANGUINITY,  are 
intended,  unless  the  contrary  be  expressed. 

Art.  14.  Whenever  any  thing  is  forbidden  or  commanded  for  the 
protection  of  property  or  interest,  and  the  general  term  "  person"  or 
any  other  general  term,  is  used,  to  designate  the  party  whose  property 
or  interest  it  is  intended  to  protect  by  such  prohibition  or  command  ; 
in  all  such  cases,  the  state,  and  all  public  and  private  bodies  corporate 
are  included. 


2  V 


4  CODE  OF  CRIMES  AND  PUNISHMENTS. 


INTRODUCTORY  TITLE. 


THIS  code  is  divided  into  two  books,  and  each  book  into  titles,  chap- 
ters, sections  and  articles,  numbered  throughout  the  whole  code. 

The  first  book  contains  general  provisions,  applicable  to  prosecutions 
and  trials  ;  to  the  persons  who  are  amenable  to  the  penal  laws  of  the 
state ;  to  the  circumstances  under  which  all  acts  that  would  other- 
wise be  offences  may  be  justified  or  excused;  to  the  repetition  of  offences; 
and  to  the  case  of  different  persons  participating  in  the  same  offence, 
as  principals,  accomplices  and  accessaries. 

The  second  book  defines  offences,  and  designates  their  punishments. 


BOOK  I. 


CONTAINING  GENERAL  PROVISIONS, 


CHAPTER  I. 


Containing  general  provisions  relative  to  the  operation  of  the  pe- 
nal laws  of  this  state. 

Art.  1.  No  act  or  omission  done  or  made  before  the  promulgation 
of  the  law  which  forbids  it,  can  be  punished  as  an  OFFENCE. 

Art.  2.  If  an  act  or  omission  be  created  an  offence  by  one  law,  and 
the  penalty  be  altered  by  another,  no  breach  of  the  first  law,  commit- 
ted before  the  promulgation  of  the  second,  can  be  punished  by  inflict- 
ing the  penalty  of  the  latter. 

Art.  3.  After  a  PENAL  LAW  is  repealed,  no  person  can  be  arrested, 
imprisoned,  tried  or  condemned,  for  a  breach  of  it  while  it  was  in 
force,  unless  the  repealing  law  has  an  express  provision  to  that  effect. 

Art.  4.  The  distinction  between  a  favourable  and  unfavourable 
construction  of  laws  is  abolished.  All  penal  laws  whatever  are  to  be 
construed  according  to  the  plain  import  of  their  words,  taken  in  their 
usual  sense,  in  connexion  with  the  context,  and  with  reference  to  the 
matter  of  which  they  treat. 

Art.  5.  When  a  second  penal  law  shall  direct  a  NEW  PENALTY, 
the  penalty  of  the  first  law  shall  be  deemed  to  be  abolished,  unless  the 
contrary  be  expressed. 

Art.  6.  A  law  which  simply  commands  or  forbids  an  act  to  be  done, 
but  which  contains  no  denunciation  of  a  penalty,  can  have  none  but 
civil  effects  ;  the  act  or  omission  which  is  forbidden  cannot  be  punished 
as  an  offence. 

Art.  7.  The  legislature  alone  has  the  right  to  declare  what  shall 
constitute  an  offence  ;  therefore  it  is  forbidden  to  punish  any  acts  or 
omissions,  not  expressly  prohibited,  under  pretence  that  they  offend 
against  the  laws  of  nature,  of  religion,  morality  or  any  other  rule,  ex- 
cept written  law. 

Art.  8.  Courts  are  expressly  prohibited  from  punishing  any  acts 
or  omissions  which  are  not  forbidden  by  the  plain  import  of  the  words 
of  the  law,  under  the  pretence  that  they  are  within  its  spirit.  It  is 
better  that  acts  of  an  evil  tendency  should  for  a  time  be  done  with  im- 
punity, than  that  courts  should  assume  legislative  powers  ;  which 
assumption  is  itself  an  act  more  injurious  than  any  it  may  purport  to 


CODE  OF  CRIMES  AND  PUNISHMENTS.  367 

repress.  There  are,  therefore,  no  constructive  offences.  The  legisla- 
ture, when  the  necessity  appears,  will  bring  such  acts  as  ought  to  be 
punished  within  the  letter  of  the  law. 

Art.  9.  If,  however,  any  penal  law  shall  be  so  inaccurately  drawn, 
as  to  bring  within  its  penalty  an  act  that  it  could  not,  in  the  opinion  of 
the  court,  have  been  the  intention  of  the  legislature  so  to  punish  ;  the 
accused  must  be  acquitted,  but  the  court  shall  report  such  case  to  the 
legislature  at  their  next  session,  or  within  eight  days  if  they  be  in  sess- 
ion. 

Art.  10.  When  a  competent  tribunal,  judging  in  the  last  resort, 
hath  rendered  a  final  judgment,  acquitting  or  condemning  the  accused, 
on  the  merits  of  the  charge  against  them,  he  can  never  be  again  prose- 
cuted for  the  same  offence. 

Art.  11.  An  accusation  being  an  affirmation  of  guilt,  it  must  be 
proved  to  the  satisfaction  of  those  whose  province  it  is  to  decide. 


CHAPTER  II. 


General  provisions  relative  to  prosecutions  and  trials, 

Art.  12.  No  person  accused  of  any  offence  shall  be  compelled  by 
violence  or  menace,  to  answer  any  interrogations  relative  to  his  inno- 
cence or  guilt;  nor  shall  his  confession,  unless  it  be  given  freely, 
without  violence,  menace,  or  promise  of  indemnity  or  favour,  be  pro- 
duced in  evidence  against  him. 

Art.  13.  No  person  shall  be  arrested  to  answer  for  any  offence, 
but  in  the  manner  and  on  the  evidence  specially  set  forth  in  the  Codes 
of  Procedure  and  Evidence. 

Art.  14.  No  SEARCH  WARRANT  shall  issue  in  any  case  but  in  those 
provided  for,  and  in  the  manner  directed,  in  the  Code  of  Procedure. 

Art.  15.  The  accused,  in  every  stage  of  the  prosecution,  is  entitled 
to  have  advice  of  such  counsellor  at  law,  or  other  person,  as  may  be 
employed  by  him  for  his  defence.  If  he  declare  himself  unable  to  pro- 
cure counsel,  the  court  shall  assign  him  an  advocate  in  the  manner  di- 
rected by  the  said  code. 

Art.  16.  No  trial  for  any  CRIME  shall  be  had,  but  in  the  presence  of 
the  accused.  No  examination  of  witnesses  shall  be  used  on  such  trial, 
but  such  as  is  taken  in  the  joint  presence  of  the  court,  the  jury,  the 
public  prosecutor  and  the  accused  ;  all  of  whom  shall  have  leave  to 
question  the  witness.  Those  cases  in  which  testimony  is  allowed  to 
be  taken  by  commission,  and  those  which  are  specially  provided  for  in 
the  Code  of  Procedure,  are  excepted  from  the  provisions  of  this  ar- 
ticle. 

Art.  17.  All  trials  for  offences  shall  be  held  in  public.  All  per- 
sons under  no  legal  disability  or  restraint,  have  a  right  to  be  present  at 
such  trials  ;  provided,  however,  that  the  court  may,  on  the  prayer  of 
the  prosecutor  or  the  accused,  direct  witnesses  to  withdraw  until  they 
are  called  for  examination  ;  and  may  also,  in  the  manner  directed  by 
the  provisions  of  the  Code  of  Procedure,  remove  such  persons  as  shall 
obstruct  the  administration  of  justice. 


368  CODE  OF  CRIMES  AND  PUNISHMENTS. 

Art.  18.  The  preceding  article  is  subject  to  the  restriction  required 
by  decency  and  morals,  which  are  particularly  provided  for  in  the 
Code  of  Procedure. 

Art.  19.  All  final  judgments  in  trials  for  offences,  with  the  reasons 
on  which  they  are  founded,  shall  be  distinctly  pronounced  in  open 
court,  in  the  presence  of  the  accused  (if  he  be  in  custody),  and  they 
shall  be  entered  at  large  on  the  minutes  of  the  court  And  in  like 
manner  all  other  judgments,  orders  or  decisions,  shall  be  pronounced 
and  entered  on  the  minutes,  whenever  either  the  public  prosecutor  or 
the  accused  shall  require  the  same. 

Art.  20.  After  a  cause,  whether  civil  or  criminal,  is  decided,  it 
shall  be  lawful  for  any  one,  by  printing  and  in  writing,  as  well  as  by 
speech,  to  discuss  the  reasons  of  any  judgment,  order  or  decree,  given 
in  the  course  of  any  such  suit  or  prosecution,  and  to  call  in  question 
the  legality  or  propriety  of  the  same. 

Art.  21.  The  process  to  which  the  accused  is  entitled  by  the  con- 
stitution, to  compel  the  attendance  of  his  witnesses,  shall  be  granted 
for  witnesses  who  may  be  in  any  part  of  the  state,  and  the  sheriff  of 
any  parish  to  whom  the  same  may  be  directed,  shall  serve  and  return 
such  process,  and  such  witnesses  shall  be  paid  by  the  state,  whenever 
the  accused  shall  be  acquitted,  and  whenever  it  shall  appear  to  the 
court  that  the  accused,  if  convicted,  is  unable  to  pay  them. 

Art.  22.  All  witnesses  summoned  to  attend  the  trial  of  any  offence, 
shall  be  protected  from  arrest  in  any  civil  suit,  and  in  any  penal  suit 
for  a  misdemeanor,  other  than  a  breach  of  the  peace,  while  attending 
on  the  court,  and  for  a  reasonable  time,  while  going  to  or  returning 
therefrom  ;  unless  it  shall  appear  that  the  witness  was  summoned  by 
collusion  merely  to  protect  him  from  arrest.  And  in  case  of  any  ar- 
rest, contrary  to  this  article,  any  judge  of  any  court  of  this  state, 
either  of  criminal  or  civil  jurisdiction,  except  justices  of  the  peace, 
may  grant  relief  by  discharging  the  person  arrested,  first  giving  notice 
to  the  person  causing  the  arrest,  or  to  his  agent. 

Art.  23.  No  person  after  being  acquitted  or  ordered  to  be  discharged, 
shall  be  detained  for  the  payment  of  any  fees  or  costs  attending  the 
prosecution  for  which  he  has  been  discharged,  or  for  the  reimburse- 
ment of  the  sum  allowed  by  the  law  for  his  support,  or  for  any  sums 
whatever  due  for  his  maintenance,  or  for  services  or  supplies  while  he 
was  in  prison.  Nor  shall  any  court  or  magistrate  give  judgment  in 
any  suit  against  a  person  who  has  been  acquitted  or  discharged  for 
want  of  prosecution,  if  he  shall  be  sued  for  any  such  fees,  or  for  any 
such  sum  as  is  allowed  by  law  for  the  maintenance  of  prisoners. 

Art.  24.  The  trial  by  jury,  as  regulated  in  the  Code  of  Procedure, 
is  declared  to  be  the  mode  of  trial  for  all  offences,  and  it  cannot  be 
renounced. 

Art.  25.  There  shall  be  no  trial  for  any  CRIME  but  on  indictment, 
nor  for  any  MISDEMEANOR  but  on  indictment  or  information,  in  the 
manner  directed  by  the  Code  of  Procedure. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  369 


CHAPTER  III. 


Of  persons  amenable  to  the  provisions  of  this  code,  and  of  the  cir- 
cumstances under  which  all  acts  that  would  otherwise  be  offences, 
may  be  justified  or  excused. 

Art.  26.  All  persons,  whether  they  be  inhabitants  of  this  state,  or 
of  any  other  of  the  United  States  of  America,  or  aliens,  are  liable  to  be 
punished  for  any  offence  committed  in  this  state  against  the  laws  thereof. 
Citizens  or  inhabitants  of  the  state  may  be  punished  for  acts  committed 
out  of  the  limits  thereof,  in  those  cases  in  which  there  is  a  special  pro- 
vision of  law,  declaring  that  the  act  forbidden  shall  be  an  offence,  al- 
though done  out  of  the  state. 

Art.  27.  An  offence  is  a  voluntary  act  or  omission,  done  or  made 
contrary  to  the  directions  of  a  penal  law.  There  can,  therefore,  gene- 
rally be  no  offence,  if  the  will  do  not  concur  with  the  act  ;  but  the  law 
has  established  exceptions  to,  and  modifications  of,  this  rule  :  but  no 
modifications  or  exceptions,  other  than  those  expressly  provided,  are 
to  be  allowed. 

Art.  28.  After  the  promulgation  of  a  law,  no  one  shall  be  excused 
for  a  breach  of  it  on  an  alleged  ignorance  of  its  provisions. 

Art.  29.  No  person  shall  be  convicted  of  any  offence  committed 
when  under  nine  years  of  age  ;  nor  of  any  offence  wh'en  between  nine 
and  fifteen  years  of  age,  unless  it  shall  appear  by  proof  to  the  jury, 
that  he  had  sufficient  understanding  to  know  the  nature  and  illegality 
of  the  act  which  constituted  the  offence. 

Art.  30.  If  a  minor  shall  commit  an  offence  by  command  or  persua- 
sion of  any  relation  in  the  ascending  line  ;  of  his  tutor  or  curator,  or 
any  person  acting  as  such  ;  or  of  his  master,  if  he  be  an  apprentice  or 
servant,  then  the  minor  shall  be  punished  for  such  offence  by  simple 
imprisonment,  during  one  half  of  the  time  to  which  he  would  have 
been  sentenced  had  he  been  of  full  age.  Provided  such  minor  have 
attained  the  age  of  fifteen  years  at  the  time  of  the  commission  of  the 
offence  ;  if  under  that  age,  the  command  or  persuasion  of  either  of  the 
persons,  standing  in  either  of  the  relations  to  him  which  are  above  enu- 
merated, shall  excuse  him  from  punishment,  if  the  offence  committed 
be  a  misdemeanor  only  ;  but  if  the  offence  be  a  crime,  such  minor, 
under  fifteen  years  of  age,  shall  be  committed  to  the  school  of  reform, 
for  the  purpose  of  being  instructed  in  some  trade,  in  the  manner  par- 
ticularly provided  for  in  the  Code  of  Reform  and  Prison  Discipline. 
And  in  all  cases  of  crimes  committed  by  minors,  under  the  age  of 
eighteen  years,  except  those  punishable  by  imprisonment  for  life,  the 
court  may  direct  that  the  offender  be,  either  in  lieu  of,  or  in  addition 
to,  the  punishment  generally  provided  for  the  offence,  be  so  committed 
to  the  school  of  reform. 

Art.   31.  In  like  manner,  a  married  woman  committing  an  offence 

by  the  command  or  persuasion  of  her  husband,  shall  suffer  no  greater 

punishment  than  simple  imprisonment,  for  one  half  of  the  time  to 

which  she  would  have  been  sentenced,  if  she  had  committed  the  offence 

2  W 


370  CODE  OF  CRIMES  AND  PUNISHMENTS. 

without  such  command  or  persuasion.  The  relation  of  husband  and 
wife,  for  the  purposes  of  this  article,  need  not  be  proved  by  testimony 
of  the  celebration  of  the  marriage  contract.  Living;  together  at  the  time, 
and  general  reputation  of  marriage,  shall  be  sufficient  to  reduce  the 
punishment  of  the  reputed  wife,  and  to  increase  that  of  the  reputed 
husband,  in  the  manner  hereafter  directed. 

Art.  32.  Offences  punishable  by  imprisonment  for  life,  are  excepted 
from  the  operation  of  the  two  last  preceding  articles. 

Art.  33.  In  all  cases  where  a  minor  shall  be  AIDED  in  the  commiss- 
ion of  an  offence,  by  either  of  the  persons  standing  in  the  relation  to 
him  hereinbefore  enumerated  ;  or  if  the  husband  or  the  reputed  hus- 
band, shall  aid  the  wife  in  the  commission  of  the  offence,  or  shall  be 
PRESENT  during  the  time  of  its  commission,  without  endeavouring  to 
prevent  it,  either  of  these  circumstances  shall  be  proof  that  the  offence 
was  committed  by  their  command  or  persuasion. 

Art.  34.  If  any  minor  or  married  woman  shall  have  committed  any 
offence,  and  the  persons  standing  in  the  relations  to  such  minor,  which 
are  above  enumerated,  or  the  husband  of  the  wife,  shall  be  convicted 
of  having  persuaded,  commanded,  or  aided  in  the  said  offence,  then 
said  persons  so  convicted  shall  be  punished  as  follows,  that  is  to  say: — 

If  the  minor  be  under  fifteen  years  of  age  at  the  time  of  committing 
the  offence,  then  the  duration  of  the  punishment,  if  the  same  shall  con- 
sist of  imprisonment,  and  the  amount  of  the  fine,  if  any,  which  would 
otherwise  have  been  inflicted  on  such  persons,  shall  be  increased  one 
half.  And  if  the  minor  shall  be  above  fifteen  years,  then  one-fourth  ; 
and  in  either  case,  if  the  punishment  for  such  offence  be  imprisonment 
for  life,  then  one  month  of  such  imprisonment,  in  every  year,  shall  be 
in  solitude. 

Art.  35.  No  act  done  by  a  person  in  a  state  of  INSANITY,  can  be 
punished  as  an  offence.  No  person  becoming  INSANE  after  he  has 
committed  an  offence,  can  be  tried  for  the  same.  No  person  becoming 
insane  after  he  has  been  found  guilty,  shall  be  sentenced  while  in  that 
state.  No  person  sentenced  shall  be  punished,  if  he  afterwards  become 
and  continue  insane. 

And  during  the  continuance  of  the  punishment,  if  the  convict  is  de- 
prived of  his  reason,  so  much  of  the  punishment  as  may  consist  of  hard 
labour,  shall,  during  such  insanity,  cease;  and  the  court  shall  make  such 
order  with  respect  to  the  convict,  as  is  provided  in  the  Code  of  Reform 
and  Prison  Discipline. 

In  all  the  cases  mentioned  in  this  article,  the  court  having  cognizance 
of  the  offence,  shall  make  order  for  securing  the  person  of  the  accused. 
The  manner  of  ascertaining  whether  insanity  is  feigned  or  real,  is  pro- 
vided for  in  the  Code  of  Procedure. 

Art.  36.  Private  soldiers  and  non-commissioned  officers  in  the  army, 
or  in  the  militia  when  in  actual  service,  are  not  liable  to  punishment 
lor  misdemeanors  committed  by  the  order  of  any  officer,  whose  legal 
military  order  they  were  bound  to  obey;  but  all  officers  giving  or  trans- 
mitting the  command,  are  liable  to  the  penalties  of  the  law. 

Art.  37.  The  order  of  a  military  superior  is  no  justification  or  excuse 
for  the  commission  of  a  crime. 

Art.  38.  The  order,  warrant  or  writ  issued  by  a  magistrate  or  court, 
shall  justify  the  person  executing  it  for  any  act  done  in  obedience 
thereto,  only  in  cases  wherein  the  following  circumstances  concur: 


CODE  OF  CRIMES  AND  PUNISHMENTS.  371 

1.  The  court  or  magistrate  must  have  JURISDICTION  of  the  cause  or 
COGNIZANCE  of  the  matter,  in  which  the  order,  warrant  or  writ  was 
issued. 

2.  The  writ,  warrant  or  order,  if  written,  must  have  all  the  substan- 
tial requisites  prescribed  by  law  for  such  writs  as  it  purports  to  be. 

3.  The  person  executing  it  must  be  an  officer  bound  to  execute,  by 
virtue  of  his  office,  such  writs  as  it  purports  to  be  ;  or  he  must  be  a 
person  to  whom  such  writ  is  legally  directed ;  or  he  must  be  one  legally 
called  upon  by  such  officer,  to  aid  in  the  execution  of  the  order,  warrant 
or  writ. 

4.  He  must  have  no  knowledge  of  any  illegality  in  obtaining  or  exe- 
cuting the  order,  warrant  or  writ. 

Art.  39.  The  legal  order  of  a  COMPETENT  magistrate  or  court,  if 
executed  by  a  person  DULY  AUTHORIZED,  will  justify  those  acts  which 
are  expressly  commanded  by  such  order,  and  also  all  those  acts  which 
are  the  necessary  means  of  carrying  the  order  into  execution,  but  it  will 
justify  no  other  acts  ;  the  means  allowed  as  necessary  by  law,  are  de- 
tailed in  the  Code  of  Procedure. 

Art.  40.  If  one  be  forced  by  threats  or  actual  violence  to  do  any  act, 
which,  if  voluntarily  done,  would  be  an  offence,  he  shall  be  exempted 
from  punishment,  by  proving  the  following  circumstances: 

1.  That  he  was  threatened  with  the  loss  of  life  or  limb,  if  he  did 
not  perform  the  act  ;  and  that  he  had  good  reason  to  believe  that  such 
threat  would  be  executed. 

2.  That  he  made  every  endeavour  which  could  be  made  by  any  man 
of  common  courage,  to  resist  or  escape  from  the  power  of  the  person 
using  the  threats. 

3.  That  the  act  of  which  he  is  accused,  was  done  while  he  was  in 
the  presence  of  the  person  using  the  threats  or  violence,  and  during  the 
continuance  of  the  same. 

Art.  41.  If  one  intending  to  commit  an  offence,  and  in  the  act  of 
preparing  for,  or  executing  the  same,  shall,  through  MISTAKE  or  ACCI- 
DENT, do  another  act,  which,  if  voluntarily  done,  would  be  an  offence, 
he  shall  incur  the  penalty  for  the  act  really  done.  Provided,  that  if 
the  act  intended  to  be  done,  be  a  misdemeanor,  he  shall  only  incur  the 
highest  penalty  provided  by  law  for  the  offence  he  intended  to  com- 
mit, although  the  act  done  would,  if  he  had  intended  it,  have  been  a 
crime. 

But  if  the  intent  was  to  commit  a  crime,  although  INFERIOR  IN  DE- 
GREE, he  shall  incur  the  penalty  provided  by  law  for  the  act  really 
done. 

Art.  42.  No  event  happening  through  MISTAKE  or  ACCIDENT  in  the 
performance  of  a  lawful  act,  done  with  ORDINARY  ATTENTION,  is  an 
offence. 

Art.  43.  An  act  forbidden  by  law,  though  done  through  MISTAKE  or 
ACCIDENT,  from  the  want  of  ORDINARY  CARE  AND  ATTENTION,  is  pun- 
ishable. 

Art.  44.  The  provisions  of  the  last  preceding  article  are  subject  to 
modifications  in  the  case  of  homicide,  which  are  expressed  in  the  part 
of  the  code  which  treats  of  homicide. 

Art.  45.  The  intention  to  commit  an  offence  shall  be  presumed 
whenever  the  means  used  are  such  as,  in  the  common  course  of  events, 
must  produce  the  event  which  is  forbidden. 


372  CODE  OF  CRIMES  AND  PUNISHMENTS. 

Art.  46.  The  fact  which  constitutes  an  offence  being  proved,  all  facts 
or  circumstances  on  which  the  accused  relies  to  justify  or  excuse  the 
prohibited  act  or  omission,  must  be  proved  by  him. 

Art.  47.  If  any  person  who  shall  ATTEMPT  TO  COMMIT  an  offence,  fail 
in  completing  the  same,  or  is  interrupted  from  any  cause,  not  depend- 
ing on  his  own  will,  he  shall  suffer  ONE  HALF  OF  THE  PUNISHMENT  to 
which  he  would  have  been  sentenced  if  he  had  completed  the  whole. 

Art.  48.  Military  offences  are  not  comprehended  in  this  code. 

Art.  49.  The  Indian  tribes  residing  within  the  boundaries  of  this 
state,  being  governed  by  their  own  usages,  no  act  done  within  their 
boundaries  by  individuals  belonging  to  such  tribes,  in  their  intercourse 
with  each  other,  or  with  other  tribes,  and  not  affecting  any  other  per- 
son, is  considered  as  an  offence  against  this  code:  in  other  respects  they 
are  considered  in  the  same  light  with  other  persons  in  the  state,  both  as 
to  protection  and  liability  to  punishment. 

Art.  50.  Offences  committed  by  slaves,  form  the  subject  of  a  separate 
code  :  such  offences  are  not  included  in  any  of  the  provisions  of  this 
system . 

Art.  51.  The  Second  Book  of  this  code  contains  modifications  of  the 
general  provisions  contained  in  this  chapter,  which  control  them. 


CHAPTER  IV. 


Of  a  repetition  of  offences. 

Art.  52.  Any  person,  who  having  been  convicted  of  a  misdemeanor, 
shall  afterwards  repeat  the  same  offence,  or  commit  any  other  misde- 
meanor of  the  same  nature,  shall  suffer  ADDITION  OF  ONE  HALF  to  the 
punishment  he  would  otherwise  have  suffered.  If  the  first  conviction 
was  for  a  crime,  the  punishment  for  the  second  offence  of  the  same  na- 
ture, shall  also  be  INCREASED  ONE  HALF. 

Art.  53.  And  if  any  person,  having  been  twice  previously  convicted 
of  crimes,  no  matter  of  what  nature,  shall  a  third  time  be  convicted  of 
any  crime  afterwards  committed,  he  shall  be  considered  as  unfit  for 
society,  and  be  imprisoned  at  hard  labour  for  life. 

Art.  54.  A  previous  conviction  in  any  of  the  United  States  of 
America,  operates  the  same  effect  as  to  the  increase  of  punishment  for 
subsequent  offences,  as  if  the  same  conviction  had  taken  place  in  this 
state. 

Art.  55.  By  offences  of  the  SAME  NATURE,  in  this  section,  are  in- 
tended all  such  as  are  comprised  within  the  same  title  in  the  Second 
Book  of  this  code. 

Art  56.  Where  the  punishment  of  the  crime  of  which  the  offender 
is  a  second  or  a  third  time  convicted,  is  imprisonment  for  life,  the  in- 
creased punishment  must  consist  in  seclusion,  or  such  other  privations 
as  the  judges  are  empowered  in  the  Second  Book  to  direct,  with  respect 
to  offenders  in  general. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  373 


CHAPTER  V. 


Of  principals,  accomplices  and  accessaries. 

Art.  57.  An  offence  being  the  doing  of  an  act  which  is  forbidden 
under  a  penalty  imposed  by  law,  or  omitting  to  do  some  act,  which 
under  like  penalty  is  directed  by  law  to  be  done  ;  those  are  principal 
offenders  who  do  the  forbidden  act,  or  who  being  bound  to  do  the  act 
enjoined,  are  guilty  of  the  omission. 

Art.  58.  If  the  forbidden  act  be  done  by  several,  all  are  principal 
offenders.  If  several  are  bound  to  perform  the  act  which  is  enjoined, 
all  who  omit  it  are  principal  offenders. 

Art.  59.  When  the  act  constituting  the  offence  is  actually  done  by  only 
one  or  more  persons,  but  others  are  present,  and  knowing  the  unlaw- 
ful intent,  aid  them  by  acts,  or  encourage  them  by  words  or  gestures; 
or  if  not  being  actually  present,  others  shall  keep  watch  to  give  notice 
of  the  approach  of  any  one  who  might  interrupt  the  commission  of  the 
offence;  or  shall  be  employed  in  procuring  aid,  or  arms,  or  instruments 
for  the  performance  of  the  act,  while  it  is  executing  ;  or  shall  do  any 
other  act  at  the  time  of  executing  the  offence,  to  secure  the  safety  or 
concealment  of  those  who  perform  the  offence,  or  to  aid  them  in  its 
execution  :  all  such  persons  are  also  principal  offenders,  and  may  be 
prosecuted  and  convicted  as  such. 

Art.  60.  When  the  offence  is  committed  by  SECONDARY  MEANS,  with- 
out employing  the  agency  of  a  person  who  may  be  convicted  as  a  prin- 
cipal offender,  the  person  employing  and  preparing  those  secondary 
means  is  a  principal  offender,  although  he  may  not  be  present  when 
the  means  he  had  prepared  took  their  effect. 

Art.  61.  Laying  poison  where  the  person  whom  it  is  intended  to 
murder  may  take  it  himself;  employing  a  child,  or  other  innocent 
person,  to  give  it ;  setting  a  spring-gun,  so  that  the  party  may  fire  it 
himself;  are  examples  of  the  secondary  means  intended  by  the  last 
preceding  article. 

Art.  62.  Those  persons  are  also  principals,  who,  having  counselled 
or  agreed  to  the  performance  of  the  act,  shall  be  present  when  it  is  done, 
whether  they  aid  in  the  execution  or  not. 

Art.  63.  There  may  be  accessaries  to  all  offences  committed  with 
premeditation,  and  accomplices  to  all  except  manslaughter,  and  offences 
occasioned  by  neglect. 

Art  64.  There  can  be  neither  accomplice  nor  accessary,  except  in 
cases  where  an  offence  has  been  committed. 

Art.  65.  All  those  are  accomplices  who  are  not  present  at  the  com- 
mission of  an  offence,  but  who,  before  the  act  is  done,  verbally  or  in 
writing,  shall  advise  or  command,  or  encourage  another  to  commit  it: 

Those  who  agree  with  the  principal  offender  to  aid  him  in  committing 
the  offence,  although  such  aid  may  not  have  been  given  : 

Those  who  shall  promise  money,  or  other  reward,  who  shall  offer 
any  place  or  particular  favour,  or  any  other  inducement;  or  shall  men- 


374  CODE  OF  CRIMES  AND  PUNISHMENTS. 

ace  any  injury  or  loss  of  favour,  in  order  to  procure  the  commission 
of  an  offence  : 

Those  who  shall  prepare  arms  or  instruments,  men,  money  or  aid  of 
any  kind,  or  do  any  other  act  prior  to  the  commission  of  the  offence, 
to  facilitate  its  execution,  and  knowing  that  it  is  intended  :  all  these 
persons  are  accomplices. 

Art.  66.  No  person  can  be  found  guilty  as  an  accomplice  to  any  of- 
fence, other  than  such  as  have  aided,  promoted,  advised  or  encouraged 
it  by  some  of  the  means  set  forth  in  the  last  preceding  article;  but  it  is 
not  necessary  that  the  advice  should  be  strictly  pursued  :  it  is  sufficient 
if  the  offence  be  of  the  SAME  NATURE  and  for  the  same  object,  as  the  of- 
fence advised  or  encouraged. 

Art.  67.  If  in  the  attempt  to  commit  an  offence,  the  principal  of- 
fender shall  make  himself  liable  to  punishment  for  any  other  act  com- 
mitted by  mistake  or  accident,  according  to  the  provisions  for  that 
purpose  hereinbefore  contained,  his  accomplices  shall  be  punished  only 
as  they  would  have  been  had  the  offence  been  committed  which  he 
intended  to  commit. 

Art.  68.  The  punishment  of  an  accomplice  is  the  same  as  that  de- 
signated for  the  principal  offender,  excepting  the  increase  of  such 
punishment  provided  for  in  the  next  article. 

Art.  69.  If  the  principal  offender  be  under  fifteen  years  of  age, 
whether  he  be  found  of  sufficient  intelligence  to  understand  the  nature 
and  illegality  of  the  act  or  not,  and  there  be  an  accomplice  of  full  age, 
the  punishment  of  such  accomplice  shall  be  INCREASED  ONE  HALF  and 
if  the  principal  offender  be  a  minor,  above  fifteen,  then  the  punishment 
of  the  accomplice  shall  be  INCREASED  ONE  QUARTER. 

Art.  70.  Accessaries  are  those  who,  knowing  that  an  offence  has 
been  committed,  conceal  the  offender,  or  give  him  any  other  aid,  in 
order  that  he  may  effect  his  escape  from  arrest  or  trial,  or  the  execu- 
tion of  his  sentence;  he  who  aids  the  offender  in  preparing  and  making 
his  defence  at  law;  or  who  procures  him  to  be  bailed,  although  he  may 
afterwards  abscond,  shall  not  be  considered  as  an  accessary. 

Art.  71.   The  following  persons  cannot  be  punished  as  accessaries. 

1.  The  husband  or  wife  of  the  offender. 

2.  His  relations  in  the  ascending  or  descending  line,  either  by  affinity 
or  consanguinity. 

3.  His  brothers  or  sisters. 

4.  His  domestic  servants. 

Art.  72.  The  accessary  shall  be  punished  by  fine  and  simple  impri- 
sonment in  the  manner  directed  by  the  Second  Book. 

Art.  73.  The  accomplice  may  be  arrested,  tried  and  punished  before 
the  conviction  of  the  principal  offender,  and  the  acquittal  of  the  princi- 
pal shall  be  no  bar  to  the  prosecution  of  the  accomplice,  but  on  the  trial 
of  such  accomplice,  the  commission  of  the  offence  must  be  clearly 
proved,  or  the  accomplice  cannot  be  convicted. 

Art  74.  The  accessary  may  be  arrested,  but  not  tried  without  his 
consent  before  the  conviction  of  the  principal,  and  the  acquittal  of  the 
principal  shall  discharge  the  person  named  as  accessary. 


BOOK  II. 


OF  OFFENCES  AND  PUNISHMENTS. 


TITLE  I. 


OF  THE  GENERAL  DIVISIONS  AND  DESCRIPTIONS  OF  OFFENCES  AND  PUNISHMENTS. 


CHAPTER  I. 


Definition  and  divisions  of  offences. 

Art.  75.  Offences  are  those  acts  and  omissions  which  are  forbidden 
by  positive  law,  under  the  sanction  of  a  penalty. 

Art.  76.  There  are  two  divisions  of  offences;  establishing  distinctions 
drawn,  the  one  from  the  degree  of  the  offence,  the  other  from  its  object. 

By  the  first  division,  all  offences  are  either  CRIMES  OR  MISDEMEANORS. 

By  the  second,  they  are  PUBLIC  OR  PRIVATE  OFFENCES. 

Art.  77.  All  offences  punishable  by  confinement  at  hard  labour,  or 
by  a  forfeiture  of  any  civil  or  political  right,  are  crimes  ;  all  other  of- 
fences are  misdemeanors. 

All  offences  to  which  either  of  the  punishments  enumerated  in  the 
last  preceding  article  are  expressly  assigned,  or  to  which  the  court  have 
a  discretionary  power  to  apply  them,  are  punishable  in  that  manner 
within  the  meaning  of  that  article. 

Art.  78.  Offences,  in  relation  to  their  object,  are  public  or  private 
offences. 

Art.  79.  Those  are  public  offences  which  principally  affect  the  state 
or  its  government  in  any  of  its  branches,  or  any  of  its  institutions,  or 
operations  for  the  benefit  of  the  citizens.  Those  are  public  offences 
which  affect, 

1.  The  sovereign  power  of  the  state. 

2.  The  legislative  power. 

3.  The  executive  power. 

4.  The  judiciary  power. 

5.  The  public  tranquillity. 

6.  The  right  of  suffrage. 

7.  The  freedom  of  the  press. 


376  CODE  OF  CRIMES  AND  PUNISHMENTS. 

S.  The  public  records. 

9.  The  current  coin  and  public  securities. 

10.  The  public  revenue. 

11.  The  commerce  and  manufactures. 

12.  The  public  property. 

13.  The  public  roads,  embankments,  navigable  waters,  and  other 
property  held  by  the  sovereign  power  for  the  common  use  of  the  people. 

14.  The  public  health. 

15.  The  morals  of  the  people. 

Art.  80.  Those  are  private  offences  which  principally  affect  indivi- 
duals, or  such  societies  as  are  either  established  or  permitted  by  law  ; 
they  are  such  as  affect  them, 

1.  In  the  exercise  of  their  religion. 

2.  In  their  honour  and  reputation. 

3.  In  their  persons. 

4.  In  their  profession  and  trade. 

5.  In  their  civil  and  political  rights  and  conditions. 

6.  In  their  property. 

Art.  81.  The  division  of  offences  marked  out  by  this  chapter,  is  in- 
tended only  for  the  establishment  of  order  in  the  arrangement  of  the 
code  ;  each  offence  will  be  hereinafter  particularly  defined  and  illustra- 
ted ;  and  no  act  or  omission  is  an  offence,  which  does  not  come  within 
some  one  of  those  definitions  as  they  are  explained  and  illustrated. 


CHAPTER  II. 


Of  punishments. 

Art.  82.  To  enforce  the  performance  of  a  duty,  or  to  give  compensa- 
tion for  or  prevent  the  infraction  of  a  right,  is  the  province  of  civil  law. 
Penal  law  designates  such  infractions  as  require  coercion  or  punishment 
to  prevent  or  repress  them;  and  it  provides  for  each  wrong  thus  desig- 
nated, the  requisite  remedy  of  prevention,  removal  of  the  evil,  or 
penalty  for  Us  commission.  This  code  is  strictly  penal :  compensation 
forms  no  part  of  its  sanction.  But  no  punishment  deprives  the  party 
who  is  injured  by  an  offence,  of  his  civil  remedy;  the  reservation  of 
such  right  to  civil  redress,  is  no  where  expressly  made,  but  is  in  all 
cases  understood. 

Art.  83.  The  claim  of  the  party  injured  by  an  offence,  when  it  be- 
comes liquidated  by  a  judgment,  is  preferred  in  cases  of  insolvency, 
to  the  claim  of  the  state  for  a  fine  imposed  for  the  same  offence.  And 
if  the  fine  be  levied,  and  there  is  no  property  sufficient  to  satisfy  the 
execution  on  the  private  suit,  the  amount  of  the  fine,  or  as  much  of  it 
as  may  be  necessary,  shall,  on  petition  against  the  officer  of  govern- 
ment in  whose  hands  it  may  be,  be  paid  over  to  satisfy  the  judgment 
obtained  by  the  party  injured. 

Art.  84.  The  civil  remedy  for  the  wrong  occasioned  by  an  offence 
may  be  pursued,  either  against  the  offender  (when  he  is  not  confined 
at  hard  labour),  or  against  the  curators  of  his  estate,  when  they  are 
appointed  according  to  the  directions  hereinafter  contained. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  377 

Art.  85.  The  punishments  and  penalties  to  be  incurred  for  offences 
under  this  code  are, 

1.  Pecuniary  fines. 

2.  Simple  imprisonment. 

3.  Imprisonment  in  close  custody. 

4.  Deprivation  of  office. 

5.  The  suspension  of  some  one  or  more  political  or  civil  rights  for 
a  limited  period. 

6.  The  forfeiture  of  some  one  or  more  political  or  civil  rights. 

7.  Imprisonment  and  hard  labour  for  a  limited  time. 

8.  Imprisonment  at  hard  labour  for  life.    Both  these  last  punishments, 
with  or  without  the  addition  of  solitary  confinement  and  other  priva- 
tions, as  are  directed  in  different  parts  of  this  code. 

Art.  86.  In  addition  to  these  punishments,  where  the  offence  is  of  a 
continuous  nature,  there  must  be  judgment  for  its  discontinuance. 

Art.  87.  In  conviction  for  offences  that  affect  honour  or  reputation, 
the  judgment  may,  in  addition  to,  or  as  an  alternative  for  the  punish- 
ment assigned,  grant  an  honorary  reparation,  in  the  manner  designated 
in  that  class  of  offences. 

Art.  88.  Pecuniary  fines  imposed  for  offences  shall  be  levied  by  ex- 
ecution in  the  name  of  the  state ;  in  the  same  manner  as  is  directed  by 
the  practice  in  civil  cases,  for  enforcing  the  execution  of  a  judgment 
for  debt,  in  the  highest  court  of  original  jurisdiction  in  the  state  ;  and 
the  fine  shall  be  a  lien  upon  real  property,  from  the  time  it  is  registered 
in  the  office  of  the  register  of  mortgages,  in  the  manner  directed  by 
law  for  the  registry  of  judicial  mortgages. 

Art.  89.  The  death  of  the  offender  operates  as  a  discharge  of  all 
pecuniary  fines  imposed  upon  him  :  even  if  execution  be  issued,  the 
officer  shall  proceed  no  further  therein.  If  the  offender  die  before  a 
sale  on  such  execution,  the  lien  created  by  the  registry  of  such  fine 
shall,  by  order  of  the  court,  be  taken  off,  on  proving  the  death  of  the 
offender  ;  unless  real  property  shall  have  been  sold,  subject  to  such 
lien,  and  the  amount  thereof  shall  have  formed  part  of  the  price  ;  in 
which  case,  the  amount  of  such  fine  shall  be  levied  by  sale  of  the  said 
real  property,  notwithstanding  the  death  of  the  person  on  whom  the 
fine  was  imposed. 

Art.  90.  A  pecuniary  fine  shall  in  no  case  exceed  one  fourth  part  of 
the  value  of  the  property,  real  and  personal,  of  the  person  on  whom  it  is 
imposed  ;  and  such  person  may,  in  all  cases,  have  any  pecuniary  fine 
reduced  to  that  amount,  on  showing  the  true  value  of  his  property,  to 
the  satisfaction  of  the  court  ;  in  which  case  the  court  must  commute  the 
part  of  the  fine  that  is  deducted  into  imprisonment ;  calculating  one 
day's  imprisonment  for  every  two  dollars  deducted  from  the  fine,  and 
the  imprisonment,  or  any  part  of  it,  may  be  in  close  custody  with  the 
limitation  contained  in  the  next  article. 

Art  91.  The  wearing  apparel,  implements  of  trade,  and  household 
furniture  of  the  delinquent,  shall  not  be  seized  on  an  execution  to  sat- 
isfy a  pecuniary  fine,  nor  shall  his  arms  or  accoutrements  as  an  officer 
or  private  in  the  militia.  If  no  other  property  be  found,  the  court 
imposing  the  fine  may,  on  such  return  being  made  on  the  execution, 
direct  that  the  offender  be  imprisoned  (either  in  close  custody  or  in 
simple  imprisonment,  for  the  whole  or  a  part  of  the  time,  at  their  dis- 
cretion) one  day  for  every  two  dollars  contained  in  the  amount 
2X 


378  CODE  OF  CRIMES  AND  PUNISHMENTS. 

of  the  fine  imposed  ;  provided,  that  such  imprisonment  do  not  exceed 
the  term  of  ninety  days,  whatever  be  the  amount  of  such  fine  ;  and 
such  imprisonment  shall  operate  as  full  satisfaction  of  such  fine. 

Art.  92.  Simple  imprisonment  is  inflicted  by  the  mere  confinement 
of  the  offender  in  the  common  prison,  appointed  for  that  purpose  by 
law,  which  shall  be  in  a  building  or  apartment  distinct  from  the  peni- 
tentiary. This  punishment  consists  simply  in  the  confinement  of  the 
person  within  the  walls  of  such  prison,  the  prisoner  being  debarred 
neither  the  use  of  books,  nor  the  means  of  writing,  nor  the  society  of 
such  persons  as  may  desire  to  see  him  during  the  hours  established  by 
the  general  regulations  for  the  prison. 

Imprisonment  in  close  custody  is  an  imprisonment  within  a  single 
chamber  of  the  common  prison,  during  which  the  prisoner  is  to  be 
allowed  no  other  sustenance  than  the  common  prison  allowance,  and  is 
debarred  all  visits,  except  such  as  may  be  specially  allowed  by  the  judge 
in  particular  cases  of  business  or  sickness. 

Art.  93.  The  civil  rights,  which  may  be  forfeited  or  suspended  by 
virtue  of  any  sentence  importing  such  forfeiture  or  suspension,  are 
divided  into  three  classes  : 

1.  The  right  of  exercising  the  duties  of  executor,  administrator, 
tutor,  curator,  attorney  at  law,  attorney  in  fact,  or  being  appointed  to  any 
PRIVATE  OFFICE,  which  is  now,  or  may  hereafter,  be  established  by  law. 

2.  The  right  of  appearing  in  person,  or  by  attorney,  in  any  court, 
as  party  to  a  suit,  either  as  plaintiff  or  defendant. 

3.  The  right  of  bearing  arms  in  defence  of  the  country,  and  of  serv- 
ing on  juries. 

Art.  94.  All  political  rights  are  suspended  by  a  sentence  of  impri- 
sonment at  hard  labour,  during  the  period  for  which  such  imprisonment 
is  directed;  if  such  sentence  be  for  life,  all  those  rights  are  forfeited. 

Art.  95.  A  sentence  of  imprisonment  at  hard  labour  suspends,  dur- 
ing the  term  of  such  imprisonment,  all  civil  rights.  If  such  sentence 
be  for  life,  all  civil  rights  are  forfeited.  Forfeiture  or  suspension  of 
civil  rights  is  directed  in  certain  cases,  which  are  specially  provided  for. 

Art.  96.  A  suspension  or  forfeiture  of  political  rights,  whether  ex- 
pressly pronounced  or  implied,  by  the  operation  of  the  two  last  pre- 
ceding articles,  deprives  the  offender  of  any  PUBLIC  OFFICE  he  may 
hold  at  the  time. 

Art.  97.  When  sentence  of  forfeiture  or  suspension  of  civil  rights, 
or  of  those  of  the  first  class  only,  has  been  expressly  pronounced  or 
implied  by  a  sentence  of  imprisonment  at  hard  labour,  all  the  duties, 
trusts,  or  PRIVATE  OFFICES,  coming  within  the  first  class  of  civil  rights, 
are  vacated  by  the  sentence;  and  some  other  person  shall  be  appointed 
to  fulfil  the  same,  in  the  same  manner  as  if  the  vacancy  had  been  occa- 
sioned by  death. 

Art.  98.  During  the  term  of  imprisonment  at  hard  labour,  the  ad- 
ministration of  the  affairs  of  the  convict  is  committed  to  a  curator, 
named  in  the  manner  directed  by  the  Code  of  Procedure. 

Art.  99.  Imprisonment  at  hard  labour  is  inflicted  in  the  following 
degrees : 

1.  At  labour  in  classes  of  convicts,  in  the  manner  directed  by  the 
Code  of  Reform  and  Prison  Discipline. 

2.  At  labour  in  solitude. 

3.  In  solitude,  with  occasional  labour. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  379 

Art.  100.  When  any  one  convicted  of  murder  under  trust,  assassina- 
tion, or  parricide,  shall  die  in  prison,  his  body  shall  be  delivered  for 
dissection;  and  the  court  may,  at  their  discretion,  add  the  same  provision 
to  their  judgment  in  the  case  of  simple  murder  or  rape. 

Art.  101.  The  punishment  of  imprisonment  at  hard  labour  admits  of 
aggravation  and  alleviation,  in  different  offences,  as  to  food,  dress,  hours 
of  labour,  solitude  and  other  particulars  which  are  described  in  this 
code,  and  in  the  Code  of  Reform  and  Prison  Discipline. 

Art.  102.  For  different  modifications  of  the  same  offence,  aggravations 
and  alleviations  of  punishment  are  directed  in  this  code,  by  a  reference 
to  the  punishment,  assigned  to  the  principal  offence;  which  it  orders  to 
be  increased  or  diminished  in  a  certain  proportion.  To  apply  this  pro- 
portion, the  following  rules  are  to  be  observed  : 

1.  If  the  direction  be  to  diminish  the  punishment  of  imprisonment 
for  life,  the  proportion  shall  be  taken  on  a  period  of  twenty-four  years. 

2.  If  the  punishment  directed  to  be  increased  or  diminished  leave  a 
discretion  to  the  court  between  a  longer  and  a  shorter  term  of  time,  or 
a  greater  or  a  smaller  fine,  the  highest  and  the  lowest  terms  or  sums 
shall  be  diminished  or  increased  in  the  proportion  directed. 

3.  When  no  lower  term  or  sum  is  fixed,  the  highest  term  or  sum 
must  be  increased  or  diminished  in  the  p/oportion  directed,  as  the 
highest  limit.     The  court  must  determine  what  judgment  they  would 
have  probably  rendered  for  the  simple  offence,  and  take  that  as  the  sum 
or  term  on  which  to  calculate  the  proportion  of  punishment  for  the 
modified  offence. 

4.  In  all  cases  where  a  discretion  is  given  to  the  court,  they  must 
observe  the  last  preceding  rule;  and  within  the  increased  or  diminished 
limits,  calculate  the  increase  or  diminution  of  punishment  for  the  mo- 
dified offence,  upon  the  term  or  sum  they  would  have  assigned  to  the 
simple  offence. 

5.  Where  the  punishment  is  a  forfeiture  of  civil  or  political  rights, 
and  a  diminution  is  directed,  the  proportion  shall  be  determined  by  a 
suspension  of  those  rights,  calculated  on  a  number  of  twenty-four  years 
as  the  whole. 

6.  When  the  judgment  is  a  suspension  of  such  rights  for  a  definite 
time,  the  proportion  shall  be  calculated  on  that  time. 

All  the  other  incidents  of  the  whole  punishment  are  annexed  to  the 
proportion  during  the  period  it  lasts. 

Art.  103.  Fines  for  certain  offences  are  directed  to  bear  a  certain  pro- 
portion to  the  income  or  emoluments  of  the  office  held  by  the  offender. 
To  determine  the  amount  of  these  fines,  the  court  may  examine  wit- 
nesses as  to  the  reputed  emoluments,  which  may  be  reduced,  if  higher 
than  the  truth,  by  the  oath  of  the  defendant,  which  it  is  optional  with 
him  to  give. 

Art.  104.  Where  for  the  offence  of  bribery  a  fine  is  directed  to  be 
imposed,  bearing  a  certain  proportion  to  the  value  of  the  bribe  offered  or 
received,  and  such  value  cannot  be  ascertained,  or  if  the  bribe  is  some- 
thing which  cannot  be  appreciated  in  money,  the  fine  imposed  shall 
not  be  less  than  five  hundred  dollars,  nor  more  than  three  thousand 
dollars,  unless  there  be  a  special  provision  to  the  contrary. 

Art.  105.  No  other  punishments  can  be  inflicted  for  any  offence  than 
those  enumerated  in  this  chapter,  and  only  in  the  cases  provided  for 
by  this  code. 


380  CODE  OF  CRIMES  AND  PUNISHMENTS. 

Art.  106.  Where  one  person  shall  be  guilty  of  several  offences  before 
he  has  been  convicted  of  any,  the  punishment  for  each  successive  of- 
fence is  cumulative;  but  the  augmented  punishment  prescribed  for  the 
repetition  of  offences  is  not  thereby  incurred  ;  and  where  the  punish- 
ment for  a  former  offence  is  Jess  than  imprisonment  for  life,  the  im- 
prisonment incurred  for  the  second  conviction  shall  commence  at  the 
expiration  of  the  first  imprisonment. 

Art.  107.  The  person  of  a  convict  who  is  condemned  to  imprison- 
ment, which  brings  with  it  a  forfeiture  of  his  civil  rights,  is  under  the 
protection  of  the  law,  as  well  as  in  its  custody.  Any  restraint  or 
violence  to  his  person,  beyond  that  necessary  to  the  execution  of  the 
sentence  of  the  law,  is  punishable  in  the  same  manner  as  it  would  be 
if  he  were  not  convicted. 

Art.  108.  The  privation  of  the  right  to  bear  arms  in  defence  of  the 
country,  does  not  give  an  exemption  from  military  duty.  Persons 
under  this  disability  are  forced  to  serve,  but  without  arms,  on  working 
parties,  and  in  the  drudgery  of  the  service. 


TITLE  II. 


OF  OFFENCES  AGAINST  THE  SOVEREIGN  POWER  OF  THE  STATE. 


CHAPTER  I. 


Of  treason. 

Art.  109.  Treason  is  denned  by  the  constitution  of  the  state.  It  con- 
sists in  levying  war  against  the  state,  or  in  adhering  to  its  enemies, 
giving  them  aid  and  comfort;  but  as  by  the  nature  of  the  union  between 
the  different  states,  the  levying  war  against  one  state  is  a  levy  of  war 
against  the  whole,  and  the  constitution  of  the  United  States  having 
made  that  act  treason,  and  vested  the  cognizance  of  the  crime  in  the 
courts  of  the  United  States,  no  provisions  are  deemed  proper  to  be 
made  respecting  that  offence. 


CHAPTER  II. 


Of  sedition. 

Art.  110.  Whoever  shall,  by  FORCE  OF  ARMS,  attempt  to  DISMEMBER 
the  state,  or  to  SUBVERT  OR  CHANGE  the  constitution  thereof,  shall  be  im- 
prisoned at  hard  labour  in  solitude  for  life,  and  after  death  his  body 
shall  be  delivered  for  dissection. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  381 

Art.  111.  To  constitute  this  offence,  there  must  be  not  only  a  de- 
sign to  dismember  the  state,  or  to  subvert  or  change  its  constitution,  but 
an  attempt  must  be  made  to  do  it  by  FORCE. 

Art.  112.  The  attempt  consists  in  enlisting  men,  preparing  arms,  or 
making  an  assemblage  of  men,  armed  or  otherwise  arrayed,  in  such 
a  manner  as  to  show  the  design  to  effect  their  object  by  force.  This  is 
sufficient  evidence  of  the  attempt,  whether  any  actual  violence  be  com- 
mitted or  not. 

Art.  113.  If  any  one  shall,  by  writing,  printing,  or  verbally,  counsel  or 
EXCITE  the  people  of  this  state,  or  of  any  part  thereof,  to  commit  either 
of  the  offences  described  in  the  preceding  part  of  this  chapter,  or  to  re- 
sist by  force  the  legal  execution  of  any  constitutional  law  of  the  state, 
he  shall  be  fined  not  less  than  five  hundred  dollars,  nor  more  than  two 
thousand  dollars;  shall  be  imprisoned  in  close  custody  not  less  than  three 
nor  more  than  twelve  months,  and  be  suspended  from  his  political  rights 
for  four  years. 

Art.  114.  It  is  not  necessary,  to  constitute  this  offence,  that  the  crime 
advised  should  be  committed. 


CHAPTER  III. 


Of  exciting  insurrection. 

Art.  115.  Any  free  person  who  shall  aid  in  any  insurrection  of  slaves 
against  the  free  inhabitants  of  this  state,  who  shall  join  in  any  secret 
assembly  .of  slaves,  in  which  such  insurrection  shall  be  planned,  with 
design  to  promote  it,  or  shall  excite  or  persuade  any  slaves  to  attempt 
such  insurrection,  shall  be  imprisoned  at  hard  labour  for  life. 

Art.  116.  By  "  insurrection,"  is  meant  an  assembling  with  ARMS, 
with  intent  to  regain  their  liberty  by  force. 

Art.  117.  The  term  "excite"  in  the  description  of  this  offence,  means 
to  offer  any  persuasion  or  inducement,  which  has  insurrection  for  its 
immediate  object.  It  excludes  the  construction  that  would  make  those 
guilty  who  only  use  language  calculated  to  render  the  slaves  discon- 
tented with  their  state.  This,  if  done  with  design  to  promote  such 
discontent,  is  an  offence  punishable  by  fine,  not  less  than  fifty,  nor  more 
than  two  hundred  dollars ;  or  imprisonment,  not  less  than  thirty  days, 
nor  more  than  six  months,  in  close  custody. 


TITLE  III. 


OF    OFFENCES  AGAINST  THE  LEGISLATIVE  POWER. 

Art.  118.  If  any  one  shall  designedly,  and  by  FORCE,  prevent  the 
general  assembly  of  this  state,  or  either  of  the  houses  composing  it,  from 
meeting,  or  shall,  with  intent  to  prevent  such  meeting,  by  the  use  of 


382  CODE  OF  CRIMES  AND  PUNISHMENTS. 

personal  violence  or  threats  thereof,  prevent  any  of  the  members  of  the 
general  assembly  from  attending  the  house  to  which  they  may  belong, 
or  shall  by  force  or  threats  thereof  force  either  of  the  said  branches  of 
the  general  assembly  to  adjourn  or  disperse,  or  to  pass  any  resolution 
or  law,  or  do  any  other  act ;  or  to  reject  any  resolution  or  law  which 
they  constitutionally  might  pass  ;  he  shall  be  fined  not  less  than  five 
hundred  dollars,  nor  more  than  two  thousand  dollars  ;  be  confined  not 
less  than  five,  nor  more  than  ten  years  at  hard  labour,  and  shall  forfeit 
his  political  rights. 

Art.  119.  Whoever  shall  use  any  threats  of  violence  to  any  member 
of  the  general  assembly,  with  intent  to  influence  his  official  conduct,  or 
shall  make  any  assault  on  him  in  consequence  of  any  thing  he  may 
have  said  or  done,  as  a  member  of  the  assembly,  or  of  his  conduct  as  a 
member  thereof,  shall  be  fined  not  less  than  one  hundred  dollars,  nor 
more  than  five  hundred  dollars  ;  and  be  imprisoned  in  close  custody, 
not  less  than  one,  nor  more  than  six  months. 

Art.  120.  Whoever  shall  BRIBE  or  offer  to  BRIBE  any  member  of  the 
general  assembly,  shall  be  fined  in  a  sum  equal  to  four  times  the  value 
of  the  bribe,  and  if  the  amount  thereof  cannot  be  ascertained,  or  cannot 
be  appreciated  in  money,  then  in  a  sum  not  less  than  one  thousand,  nor 
more  than  two  thousand  dollars  ;  shall  suffer  imprisonment  at  hard  la- 
bour, not  less  than  six  months,  nor  more  than  one  year,  and  be  sus- 
pended from  all  political  rights  for  five  years. 

Art.  121.  If  any  member  of  the  general  assembly  shall  receive  or  agree 
to  receive  a  BRIBE,  he  shall  be  fined  in  a  sum  equal  to  five  times  the 
value  of  the  bribe,  and  if  the  value  thereof  cannot  be  ascertained,  or 
cannot  be  appreciated  in  money,  then  in  a  sum  not  less  than  two  thou- 
sand, nor  more  than  five  thousand  dollars  ;  shall  forfeit  his  political 
rights,  and  be  imprisoned  in  solitude  and  at  hard  labour,  not  less  than 
one,  nor  more  than  two  years. 


TITLE  IV. 


OF  OFFENCES  AGAINST  THE  EXECUTIVE  POWER. 


CHAPTER  I. 

Art.  122.  If  any  person  elected  or  appointed  to  any  EXECUTIVE 
OFFICE,  shall  do  any  official  act,  before  he  shall  have  given  security,  if  any 
is  required  by  law,  or  before  he  shall  have  taken  the  oaths  of  the  office, 
when  they  are  required  by  law,  he  shall  pay  a  fine  equal  to  one  half 
year's  emolument  of  his  office. 

Art.  123.  Any  person  who  shall  BRIBE,  or  offer  to  BRIBE  AN  EXECU- 
TIVE OFFICER,  shall  be  suspended  from  the  enjoyment  of  his  political 
rights,  for  not  less  than  four,  nor  more  than  six  years,  be  fined  not  less 
than  three  times  the  value  of  the  bribe  offered,  and  be  imprisoned  in 
close  custody,  not  less  than  two,  nor  more  than  six  months. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  383 

Art.  124.  If  any  one  by  VIOLENCE  OFFERED  TO  THE  PERSON  of  any 
executive  officer,  or  by  threats  of  violence,  shall  induce,  or  force  him 
to  do  any  official  act,  in  an  illegal  manner,  or  to  do  under  colour  of  his 
office  any  other  act,  which  he  is  not  authorized  to  do,  or  to  omit  the 
performance  of  any  official  act,  which  he  is  bound  to  perform,  the  of- 
fender shall  be  imprisoned  in  close  custody,  not  less  than  three,  nor 
more  than  twelve  months,  and  shall  be  fined  in  a  sum  not  less  than 
fifty,  nor  more  than  two  hundred  dollars  :  in  addition  to  the  punish- 
ment provided  by  law  for  the  act  or  omission,  to  which  he  compelled 
the  officer,  if  it  be  an  offence,  and  in  addition  also  to  the  punishment 
directed  by  law  for  the  violence  itself,  considered  as  unconnected  with 
the  motive  for  offering  it. 

Art.  125.  If  any  one  shall  by  force  resist  any  executive  officer  in 
the  performance  of  his  office,  or  attempt  by  force  to  commit  either  of 
the  acts  made  punishable  by  the  last  preceding  article,  without  suc- 
ceeding in  such  resistance  or  attempt,  he  shall  suffer  one  half  the  pun- 
ishment directed  by  the  said  article. 


CHAPTER  II. 


Of  offences  committed  by  executive  officers. 

Art.  126.  Any  EXECUTIVE  OFFICER  who  shall  receive  a  BRIBE,  shall 
forfeit  his  political  rights,  and  be  imprisoned,  not  less  than  one,  nor  more 
than  two  years  ;  one-fourth  of  the  time  in  close  custody  ;  and  shall  be 
fined  not  less  than  four  times  the  value  of  the  bribe  received. 

Art.  127.  If  any  executive  officer  shall  corruptly  agree  to  make  any 
appointment,  or  do  any  other  official  act  in  consideration  of  some  AD- 
VANTAGE (which  is  not  incident  to  the  act)  given  or  promised  to  him 
for  such  act,  but  which  ADVANTAGE  does  not  come  within  the  definition 
of  an  EMOLUMENT,  he  shall  forfeit  the  amount  of  the  emoluments  of  his 
office  for  not  less  than  six  months,  nor  more  than  two  years. 

Art.  128.  If  any  executive  officer  shall  EXTORT  money,  or  OTHER 
REWARD,  for  the  performance  of  acts  he  was  obliged  bylaw  to  perform, 
and  for  which  no  remuneration  is  given  by  law,  or  shall  extort  more 
than  is  allowed  by  law  for  the  performance  of  any  service,  or  shall 
EXTORT  money  or  other  REWARD  from  any  one,  under  the  pretence  that 
he  has  performed  services  for  which  a  remuneration  is  given  by  law, 
when  in  fact  no  such  services  have  been  rendered,  he  shall  be  impri- 
soned in  close  confinement,  not  less  than  two  months,  nor  more  than 
one  year,  and  shall  moreover  forfeit  the  office  he  holds,  and  be  fined  in 
a  sum  equal  to  one  year's  salary  or  emoluments  of  the  said  office. 

Art.  129.  If  any  executive  officer  shall  RECEIVE,  or  agree  to  RECEIVE, 
any  EMOLUMENT  whatever,  though  voluntarily  given,  for  doing  any  act 
required  to  be  done  by  virtue  of  his  office,  or  for  refraining  from  doing 
any  thing,  which  he  is  not  authorized  to  do,  if  the  law  does  not  ex- 
pressly authorize  the  receipt  of  such  emolument ;  or  shall  receive  any 
emolument  greater  in  value  than  the  sum  determined  by  law  for  any 
services  rendered  by  virtue  of  his  office,  although  such  emolument  be 


384  CODE  OF  CRIMES  AND  PUNISHMENTS. 

voluntarily  given,  he  shall  forfeit  the  amount  of  one  half  year's  salary 
or  emoluments  of  his  office. 

Art.  130.  If  any  executive  officer  shall,  under  pretence  of  performing 
the  duties  of  his  office,  do  any  act  which  amounts  to  an  offence,  he  shall 
suffer  an  additional  punishment  of  one  half,  to  that  which  is  by  law 
provided  for  the  offence  when  committed  by  another. 

Art.  131.  If  any  executive  officer  shall  undesignedly  do  any  act,  under 
colour  of  his  office,  which  he  is  not  authorized  by  his  office  to  perform, 
or  shall  negligently  omit  to  do  any  act  which  he  ought  by  virtue  of  his 
office  to  perform,  by  which  act  or  omission  any  individual  or  society 
receives  such  injury  as  would  entitle  them  to  a  civil  action,  such  officer 
shall  be  fined,  in  a  sum  not  less  than  two  months,  and  not  more  than 
six  months,  of  the  emoluments  of  his  office.  This  article  does  not  ex- 
tend to  any  other  such  act  or  omission,  as  by  any  other  part  of  this  code 
is  created  an  offence. 

Art  132.  If  any  of  the  acts  or  omissions  described  in  the  last  preced- 
ing section  shall  be  intentionally  done,  or  made  the  party  guilty  thereof, 
shall,  in  addition  to  the  fine,  be  suspended  from  his  political  rights,  for 
not  less  than  two,  nor  more  than  four  years. 

Art.  133.  All  the  articles  of  this  title,  which  impose  penalties  upon 
executive  officers  for  offences,  extend  to  the  deputies  and  clerks  of  such 
officers  who  shall  commit  the  same  offences. 

Art.  134.  Every  person  entrusted  by  the  officer  with  the  performance 
of  his  official  duties,  is  considered  as  a  deputy  for  the  purpose  of  this 
section,  whether  the  officer  had  a  right  to  appoint  a  deputy  or  not. 

Art.  1 35.  Every  person  who  publicly  exercises  the  duties  of  any  office, 
is  subject  to  the  penalties  imposed  by  this  section ;  although  there  be 
such  defect  or  informality  on  his  appointment  or  election,  or  any  such 
omission  to  comply  with  the  formalities  required  by  law,  as  would  ren- 
der his  official  acts  invalid. 

Art.  136.  The  principal  officer  is  considered  as  himself  guilty  of  all 
such  offences  committed  by  his  deputy,  in  relation  to  his  office,  as  are 
committed  with  his  knowledge  or  consent ;  and  he  shall  be  presumed 
to  have  known  and  consented  to  such  offence,  if  it  can  be  shown  that 
the  deputy  had,  before  the  act  complained  of,  committed  a  similar  offi- 
cial offence,  while  in  his  service,  to  the  knowledge  of  the  officer ;  and 
that  after  such  knowledge,  he  continued  to  employ  him  in  the  perform- 
ance of  his  official  duties. 

Art.  137.  The  provisions  of  this  and  of  the  last  preceding  chapter, 
relating  to  bribery;  extend  to  those  who  exercise  any  CORPORATE  or 
PRIVATE  office,  and  to  those  who  may  bribe  or  attempt  to  bribe  them. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  385 


TITLE  V. 


OF   OFFENCES  AFFECTING  THE  JUDICIARY  POWER. 


CHAPTER  I. 

Of  offences  committed  by  and  against  judges  or  jurors  in  their 

official  capacity. 

SECTION  I. 

Of  offences  committed  by  judges  or  jurors. 

Art.  138.  If  any  judge  or  juror  shall  take  a  bribe,  he  shall  be  fined 
five  times  the  value  of  the  bribe  received,  shall  suffer  imprisonment,  in 
close  confinement,  not  less  than  six,  nor  more  than  twelve  months  j  and 
shall  forfeit  his  political  rights. 

Art.  139.  If  any  judge  shall  maliciously,  but  without  being  bribed,  do 
any  official  act,  or  render  any  judgment,  which  he  is  not  by  law  author- 
ized to  do  or  render,  or  shall  maliciously  omit  to  do  any  act  which  he 
ought,  by  virtue  of  his  office,  to  perform,  he  shall  forfeit  his  political 
rights,  and  be  fined  to  the  amount  of  his  income  of  office  for  one  year. 

Art.  140.  If  any  judge  shall  corruptly  agree  to  give  any  judgment,  or 
to  do  any  other  official  act,  in  consideration  of  some  advantage  (which 
is  not  incident  to  the  official  act)  given  or  promised  to  him  for  render- 
ing such  judgment  or  doing  such  act,  which  advantage  shall  not  come 
within  the  definition  of  an  emolument,  he  shall  forfeit  his  office  and  be 
fined  in  the  amount  of  the  income  thereof  for  one  year. 

Art.  141.  If  any  judge  shall  receive  from  any  person  whatever,  unless 
he  be  a  relation  in  the  ascending  or  descending  line,  or  a  collateral  rela- 
tion within  the  second  degree,  any  gift  or  donation  whatever,  of  any 
assignable  value,  unless  it  be  made  by  last  will  and  testament  or  codicil, 
he  shall  be  fined  in  a  sum  equal  to  six  months'  income  of  his  office. 

Art.  142.  If  any  judge,  whose  duty  it  shall  or  may  be  to  assist  at  the 
drawing  of  jurors  to  form  the  panel  for  the  grand  jury,  or  the  petit 
jury  in  any  court  in  this  state,  shall  designedly  put,  or  consent  to  the 
putting  of  any  name  on  the  said  panel  not  drawn  according  to  law,  or 
shall  omit  to  put  on  such  panel  any  name  which  shall  be  legally  drawn, 
or  shall  sign  or  certify  any  panel  of  names  not  drawn  according  to 
law,  such  judge,  or  any  other  person  who  shall  designedly  aid  therein, 
shall  be  fined  not  less  than  two  hundred  dollars,  nor  more  than  one 
thousand  dollars,  and  shall  be  imprisoned  not  less  than  one,  nor  more 
than  six  months  ;  and  if  the  offence  shall  be  committed  at  the  solicita- 
tion of  any  person  accused  of  an  offence,  or  of  the  prosecutor,  or  any 
2  Y 


386  CODE  OF  CRIMES  AND  PUNISHMENTS. 

party  in  a  civil  suit ;  the  offender  shall  also  be  suspended  from  the  ex- 
ercise of  his  political  rights  for  five  years. 

Art.  143.  If  any  juror  shall  (except  in  the  deliberation  with  his  fellow 
jurors)  make  any  promise  or  agreement  to  give  a  verdict  for  or  against 
any  one  accused  of  any  offence,  or  for  or  against  any  party  to  a  civil 
suit ;  or  shall  receive  any  papers  or  evidence  from  the  prosecutor  or  the 
accused  in  any  criminal  suit,  or  either  of  the  parties  in  any  civil  suit, 
other  than  such  as  shall  be  delivered  in  open  court,  he  shall  be  fined 
not  less  than  fifty,  nor  more  than  four  hundred  dollars,  or  may  be  im- 
prisoned not  exceeding  thirty  days,  or  both. 

Art.  144.  If  any  judge,  who  is  allowed  to  take  fees  or  compensation 
for  any  official  act  that  he  is  authorized  to  do,  whether  of  a  judicial  or 
executive  nature,  shall  exact  and  receive  more  for  such  service  than  by 
law  he  is  authorized  to  receive,  he  shall  pay  a  fine  equal  to  one  year's 
income  of  his  office,  and  shall  forfeit  his  political  rights. 

Art.  145.  If  any  judge,  even  with  the  consent  of  the  party  paying  the 
same  for  any  official  act,  whether  of  a  judicial  nature  or  executive  na- 
ture, for  which  he  is  authorized  to  take  any  fees  or  compensation,  shall 
receive  any  greater  sum  than  that  allowed  by  law  for  such  service,  he 
shall  be  fined  in  a  sum  equal  to  six  months'  income  of  his  office. 

Art.  146.  No  judge  shall  take  any  part,  either  by  sitting  as  judge,  or 
deciding  any  point,  or  advising  with  the  other  judges,  either  in  or  out 
of  court,  in  the  trial  or  hearing  of  any  cause  in  which  or  in  the  contro- 
versy out  of  which  it  has  arisen  he  shall  have  been  employed  either  as 
counsellor  or  attorney,  or  which  or  in  the  controversy  of  which  it  shall 
have  arisen  he  shall  have  acted  as  ARBITRATOR,  or  on  any  former  trial  of 
which  he  shall  have  been  sworn  as  a  juror,  or  in  which  he  has  any  in- 
terest, or  to  which  any  of  his  ascendants  or  decendants,  or  any  collateral 
relation,  either  by  consanguinity  or  affinity,  within  the  third  degree, 
are  parties,  or  are  anywise  interested  ;  nor  shall  any  of  the  other  judges 
of  the  same  court  consult  with,  or  take  the  opinion  of  such  other,  in  or 
out  of  court,  in  any  such  cause  as  is  above  described.  And  any  judge 
who  shall  designedly  offend  against  any  provision  of  this  article,  shall 
be  fined  in  a  sum  equal  to  his  salary  and  emoluments  for  six  months. 

Art.  147.  The  first  article  of  this  chapter  relates  to  ARBITRATORS  as 
well  as  judges ;  and  all  the  preceding  articles  of  this  chapter,  except 
the  fourth,  relate  to  justices  of  the  peace  as  well  as  judges. 


SECTION  II. 
Of  offences  against  judges  or  jurors  in  their  official  capacity. 

Art.  148.  If  any  one  shall  bribe  or  offer  to  bribe  any  judge,  justice 
of  the  peace  or  arbitrator  or  juror,  either  of  the  grand  jury  or  trial 
jury,  he  shall  be  confined  in  close  custody,  not  less  than  two,  nor  more 
than  six  months,  and  shall  be  fined  in  a  sum  equal  to  four  times  the 
value  of  the  bribe  offered  or  given. 

Art.  149.  If  any  one  by  violence  or  threats  of  bodily  harm,  or  illegal 
injury  to  property  or  reputation,  shall  attempt  to  oppose  or  influence 
any  judge  or  justice  of  the  peace  in  the  execution  of  any  official  act,  or 


CODE  OF  CRIMES  AND  PUNISHMENTS.  387 

shall  in  like  manner  attempt  to  force  or  influence  any  judge,  justice  of 
the  peace  or  ARBITRATOR  or  juror  to  render  or  find  any  judgment,  order, 
verdict,  or  indictment,  or  to  do  any  other  official  act,  he  shall  be  fined 
not  less  than  fifty,  nor  more  than  four  hundred  dollars  ;  or  be  imprison- 
ed, not  less  than  twenty  days,  nor  more  than  six  months,  or  both  ;  and 
the  imprisonment,  or  any  part  of  it,  may  be  in  close  custody,  in  addi- 
tion to  any  punishment  that  may  be  incurred  by  the  violence  used. 

Art.  150.  If  any  one,  with  intent  to  influence  the  verdict  of  a  jury  in 
a  criminal  or  civil  suit,  shall  any  where  but  in  open  court,  or  by  leave  of 
the  court,  exhibit  to  any  person  drawn  or  summoned  to  serve  as  a  grand 
juror  or  petit  juror  during  the  term  at  which  such  suit  is  to  be  tried, 
knowing  or  believing  him  to  be  so  summoned  or  drawn,  any  evidence 
in  such  suit,  or  use  any  arguments  in  favour  of,  or  against  either  of 
the  parties  ,in  such  suit,  he  shall  be  fined  not  less  than  twenty,  nor  more 
than  one  hundred  dollars,  and  shall  be  imprisoned  not  less  than  five, 
nor  more  than  thirty  days  ;  and  if  the  offender  be  an  officer  of  justice, 
or  an  attorney  or  counsellor,  or  an  officer  of  the  court,  the  punishment 
shall  be  double. 

Art.  151.  If  any  one  shall,  during  the  pendency  of  any  civil  suit,  or 
criminal  prosecution,  publish  or  print  any  argument,  statement  or  ob- 
servations relating  to  such  cause,  of  such  a  nature  as  to  influence  the 
verdict  of  a  jury,  or  to  excite  any  public  prejudice  for  or  against  either 
of  the  parties  in  such  cause,  he  shall  be  imprisoned,  not  exceeding  thirty 
days,  or  fined  not  exceeding  two  hundred  dollars. 

Art.  152.  But  nothing  in  the  preceding  article  contained,  shall  prohi- 
bit in  any  stage  of  a  criminal  prosecution,  the  publication  of  a  true 
statement  of  any  judicial  proceeding,  or  the  examination  of  witnesses 
judicially  taken,  with  the  exceptions  contained  in  the  Code  of  Procedure, 
in  cases  affecting  decency  and  morals. 


CHAPTER  II. 


Of  offences  against  officers  of  justice  and  officers  of  courts. 

Art.  153.  Whoever  shall  BRIBE  or  offer  to  BRIBE  any  officer  of  justice, 
or  any  clerk,  translator,  or  other  officer  of  a  court  of  justice,  he  shall 
be  imprisoned  not  less  than  one,  nor  more  than  six  months,  shall  be 
fined  not  less  than  one  hundred,  nor  more  than  five  hundred  dollars, 
and  be  suspended  from  his  political  rights  for  five  years. 

Art.  154.  Whoever  shall  forcibly  oppose  any  officer  of  justice,  know- 
ing him  to  be  such,  in  the  lawful  execution  of  an  official  act,  he  shall 
be  imprisoned  not  less  than  ten  days,  nor  more  than  six  months  ;  and 
shall  be  fined  not  less  than  fifty,  nor  more  than  five  hundred  dollars  ; 
and  the  whole  or  any  part  of  the  imprisonment  may  be  close  custody. 

Art.  155.  Persons  to  whom  a  special  warrant  is  directed  in  the  man- 
ner prescribed  in  the  Code  of  Procedure,  and  those  who  are  by  the  pre- 
visions of  the  same  code,  authorized  to  make  arrests,  without  warrant 
in  the  cases  allowed  by  law,  are  officers  of  justice  within  the  purview 


388  CODE  OF  CRIMES  AND  PUNISHMENTS. 

of  this  title,  while  actually  employed  in  executing  such  warrant  or 
making  such  arrest. 

Art.  156.  To  constitute  this  offence,  it  must  be  known  not  only  that 
the  person  opposed  is  an  officer  of  justice,  but  that  the  act  he  is  doing 
is  an  official  one  ;  this  knowledge  may  be  proved  by  other  circum- 
stances, but  no  other  proof  is  necessary  than  that  the  officer  (if  he  were 
one)  at  the  time  gave  notice  of  his  official  character,  and  of  the  purpose 
of  his  act. 

Art.  157.  The  offence  is  not  committed  by  an  opposition  to  any  others 
than  official  acts,  therefore  the  penalty  is  not  incurred  by  opposing  an 
officer  of  justice,  when  he  attempts  to  do  any  act  that  is  not  authorized 
by  his  legal  powers,  or  to  do  an  authorized  act  by  illegal  means,  the 
opposition,  if  confined  in  purpose  to  that  part  of  the  act  which  is  ille- 
gal, and  in  degree  to  the  force  necessary  to  prevent  its  execution,  does 
not  amount  to  this  offence. 

Art.  158.  No  other  error  in  a  warrant,  or  order,  will  justify  an  oppo- 
sition to  it  than  the  following  : 

1.  That  it  was  not  issued  by  either  a  court  or  magistrate. 

2.  That  the  person  named  or  described  in  the  warrant  is  not  the  per- 
son against  whom  the  warrant  or  order  is  attempted  to  be  executed. 

3.  That  the  person  executing  it  is  neither  the  one  to  whom  it  is  di- 
rected, nor  an  officer  of  justice  ;  if  he  be  an  officer  of  justice,  he  may 
execute  the  warrant  to  whomsoever  it  may  be  directed. 

4.  That  the  warrant  or  order  is  issued  or  allowed  by  a  magistrate, 
whose  authority  does  not  extend  to  the  place  in  which  it  is  attempted 
to  be  executed. 

Art.  159.  Force  used  against  an  officer  of  justice  while  in  the  legal 
execution  of  his  duty,  does  not  amount  to  this  offence,  unless  the  intent 
be  to  prevent  the  execution  of  Me/duty,  although  the  force  should  have 
that  effect. 

Art.  160.  In  making  an  arrest  under  a  warrant,  a  forcible  opposition 
to  it  is  not  justified  by  a  refusal  to  deliver  the  warrant  out  of  the  officer's 
hands,  provided  he  show  it  when  required. 

Art.  161.  If  by  reason  of  the  opposition  the  officer  of  justice  is  pre- 
vented from  executing  his  duty,  the  punishment  shall  be  increased  one 
half. 

Art.  162.  This  offence  may  be  committed  as  well  by  a  person  not 
concerned  in  the  official  act  which  is  opposed,  as  by  the  party  against 
who^n  it  is  directed. 

Art.  163.  All  official  acts  that  can  be  lawfully  done  by  an  officer  of 
justice,  either  in  obedience  to  the  lawful  order  of  a  court  or  magistrate, 
whether  of  a  civil  or  criminal  jurisdiction  ;  or  such  as  he  is  required  to 
do  as  conservator  of  the  peace,  or  for  the  prevention  of  offences,  or  se- 
curing the  persons  of  offenders,  come  within  the  purview  of  this  chapter. 

Art.  164.  Threats  of  such  violence  as  the  party  has  it  in  his  power  to 
execute,  and  as  would  be  sufficient  to  intimidate  a  man  of  common 
firmness,  amount  to  a  forcible  opposition  within  the  meaning  of  this 
and  the  next  chapter,  as  to  rescue. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  389 


CHAPTER 


Of  rescue. 

Art.  165.  Whoever  shall  by  force  set  any  one  at  liberty,  who  is  in 
custody  on  a  lawful  arrest  for  any  offence,  shall  suffer  one  half  of  the 
punishment  assigned  by  law  to  the  offence  for  which  the  person  rescued 
was  charged.  If  the  arrest  was  on  a  civil  suit,  the  punishment  shall  be 
fine,  not  less  than  fifty  nor  more  than  five  hundred  dollars,  or  imprison- 
ment in  close  custody  not  less  that  thirty  days,  nor  more  than  six 
months,  or  both  ;  provided,  that  whatever  may  be  the  punishment 
assigned  to  any  offence  for  which  the  person  rescued  shall  have  been 
arrested,  no  judgment,  on  a  conviction  for  rescuing  one  who  was  arrest- 
ed for  an  offence,  shall  be  less  than  that  assigned  for  the  rescue  of  one 
arrested  in  a  civil  suit. 

Art.  166.  If  the  warrant,  under  which  the  arrest  was  made,  be  so 
defective  as  to  justify  the  party  arrested  in  resisting  it,  according  to  the 
previous  disposition  of  this  code,  and  he  does  so  resist ;  those  who  aid 
him  in  a  legal  manner  are  not  guilty  of  a  rescue. 

Art.  167.  In  like  manner,  those  who  aid  a  person  in  resisting  an  arrest 
made  without  warrant,  under  circumstances  which  do  not  legally  justify 
such  arrest,  are  not  guilty  of  a  rescue. 

Art.  168.  There  can  be  no  rescue,  unless  there  has  been  an  arrest ; 
any  forcible  opposition  to  making  a  lawful  arrest  is  another  offence 
already  provided  for. 

Art.  169.  If  the  party  arrested  make  no  opposition,  and  the  officer  or 
other  person  making  the  arrest  is  proceeding  with  the  prisoner  to  a 
magistrate  for  examination,  when  he  is  forcibly  set  at  liberty,  it  is  a 
rescue,  although  the  original  arrest  were  unlawful. 

Art.  170.  If  the  rescue  be  after  a  commitment  is  made  out,  and  before 
the  prisoner  is  actually  received  in  prison,  no  defect  whatever  in  the 
commitment  can  justify  the  rescue. 


CHAPTER  V. 


Of  escape. 

Art.  171.  If  any  one  lawfully  arrested  for  whatever  cause,  shall  escape 
from  custody,  without  being  legally  discharged,  he  shall  be  fined  not 
exceeding  one  hundred  dollars,  or  imprisoned  not  exceeding  sixty 
days  ;  provided  such  escape  be  not  effected  by  breach  of  prison  or  by 
violence. 

If  the  escape  be  effected  by  violence,  it  shall  be  punished  in  the  man- 
ner hereinbefore  directed  with  respect  to  those  who  oppose  executive 
officers  of  justice  in  the  performance  of  their  duly. 


390  CODE  OF  CRIMES  AND  PUNISHMENTS. 

Art  172.  Any  executive  officer  of  justice,  or  other  person  having  the 
legal  custody  of  any  one  who  has  been  lawfully  arrested  for  any  offence, 
who  shall  voluntarily  suffer  such  person  to  escape  or  to  be  rescued, 
shall  suffer  one  half  of  the  punishment  of  the  offence  with  which  the 
person  escaping  was  charged  ;  and  if  an  officer,  he  shall  be  suspended 
from  his  political  rights  for  four  years. 

Art  173.  If  the  escape  or  rescue  be  owing  to  negligence,  the  punish- 
ment shall  be  one-fourth  of  that  which  would  have  been  incurred  by 
the  person  escaping,  had  he  been  found  guilty. 

Art.  1 74.  Offenders  against  the  provisions  of  either  of  the  two  last  pre- 
ceding articles  may  be  convicted,  although  the  person  escaping  should 
not  be  retaken  or  should  be  acquitted  on  trial. 


CHAPTER  VI. 


Of  breach  of  prison. 

Art.  175.  If  any  one  legally  committed  to  any  PUBLIC  PRISON,  either 
before  or  after  conviction,  for  any  offence  or  in  any  civil  suit,  shall,  by 
breaking  the  prison  or  by  violence  offered  to  any  person  employed 
to  keep  or  guard  such  prison,  escape  or  attempt  to  escape  from  such 
prison,  he  shall  be  imprisoned  in  close  custody,  not  less  than  six 
months,  nor  more  than  two  years,  to  commence  after  the  expiration  of 
his  original  imprisonment. 

Art.  176.  If  anyone  shall  rescue  or  attempt  to  rescue  any  other  per- 
son who  is  confined  in  any  public  prison,  by  breaking  such  prison,  he 
shall  be  imprisoned  at  hard  labour,  not  less  than  two  nor  more  than 
five  years,  in  addition  to  the  punishment  assigned  for  the  offence  of 
rescuing  such  prisoners,  should  the  rescue  be  effected. 

Art.  177.  The  penalty  of  the  last  preceding  article  is  incurred  whe- 
ther the  prisoner  be  legally  or  illegally  committed. 

Art.  178.  If  any  one  shall,  by  any  means  not  amounting  to  breach 
of  prison,  aid  any  prisoner  legally  confined  in  a  public  prison  to  escape, 
or  shall  supply  instruments  for  breaking  the  prison,  or  other  means  of 
escape,  for  the  purpose  of  attempting  it,  whether  the  escape  be  effected 
or  not,  he  shall  be  fined  not  less  than  one  hundred  nor  more  than  five 
hundred  dollars,  and  be  imprisoned  not  less  than  one  nor  more  than 
six  months  in  close  custody,  or  by  simple  imprisonment  for  the  whole 
or  part  of  the  time. 

Art.  179.  If  the  breach  of  prison  be  effected  by  the  means  set  forth  in 
the  last  preceding  article,  the  person  aiding  or  providing  the  means 
may  also  be  punished  as  an  accomplice  in  that  offence. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  391 


CHAPTER  VII. 


Of  offences  committed  by  officers  of  justice  and  officers  of  courts  in 
their  official  capacity. 

Art.  180.  All  the  articles  of  the  first  and  second  chapters  of  the  fourth 
title  of  this  book,  entitled,  "  of  offences  committed  by  executive  offi- 
cers," apply  to  officers  of  justice  and  officers  of  courts,  they  being  com- 
prehended in  the  definition  of  executive  officers. 


CHAPTER  VIII. 


Of  counsellors  and  attorneys  at  law. 

Art.  181.  If  any  of  the  offences  enumerated  in  the  other  chapters  of 
this  title,  and  not  provided  for  in  this  chapter,  shall  be  committed  by 
an  attorney  at  law  or  a  counsellor  at  law,  the  punishment  assigned  to 
such  offence  shall  be  increased  one  half. 

Art.  182.  Any  counsellor  at  law,  or  attorney  at  law,  or  any  attorney 
in  fact,  charged  with  the  prosecution  or  defence  of  a  civil  suit,  who 
shall  receive  a  bribe,  shall  be  fined  a  sum  equal  to  five  times  the  value  of 
the  bribe  received,  shall  be  imprisoned  not  less  than  six  nor  more  than 
twelve  months,  and  shall  forfeit  his  political  rights,  and  his  civil  rights 
of  the  first  class. 

Art.  183.  If  any  attorney  at  law,  or  counsellor  at  law,  or  any  attor- 
ney in  fact,  who  is  charged  in  any  prosecution  or  defence  of  a  civil 
suit,  or  the  defence  of  any  one  accused  of  an  offence,  shall  designedly 
divulge  any  circumstance  which  came  to  his  knowledge  in  virtue  of  his 
trust,  to  the  injury  of  his  client ;  or  shall  give  counsel  to  the  opposite 
party,  to  the  injury  of  his  client ;  or  after  having  engaged  to  prosecute 
or  defend  any  civil  suit,  and  been  consulted  on  the  merits  of  the  case, 
for  any  one,  shall,  on  account  of  the  non-payment  of  fees,  or  for  any 
other  cause  or  pretext,  appear  for  the  opposite  party,  either  as  his  attor- 
ney or  counsellor  in  court,  or  secretly  as  his  adviser ;  or  shall,  with 
intent  to  injure  the  party  for  whom  he  is  employed,  do  any  other  act 
which  he  is  not  legally  required  to  do,  that  is  injurious  to  the  interest 
of  such  party,  or  omit  to  do  any  other  lawful  official  act,  whereby  his 
client  shall  suffer  in  his  interest  or  reputation  ;  he  shall,  for  either  of 
these  offences,  be  imprisoned  not  less  than  twenty  days,  nor  more 
than  six  months  ;  and  if  an  attorney  or  counsellor  at  law,  be  suspended 
from  the  exercise  of  his  profession  not  less  than  three  nor  more  than 
twelve  months  ;  and  if  an  attorney  in  fact,  in  addition  to  the  imprison- 
ment, be  fined  not  less  than  one  hundred  nor  more  than  five  hundred 
dollars. 

Art.  184.  If  any  attorney  at  law,  or  counsellor  at  law,  or  any  attor- 
ney in  fact,  employed  to  conduct  a  suit  or  defence  in  court,  shall, 


392  CODE  OF  CRIMES  AND  PUNISHMENTS. 

within  five  days  after  demand  in  writing,  by  a  person  legally  author- 
ized to  make  such  demand,  refuse  or  neglect  to  pay  the  balance  due  on 
any  sum  of  money,  or  deliver  any  notes  or  other  securities  he  may 
have  received  for  the  person  by  whom  he  was  employed,  on  any  suit 
in  court,  or  on  any  demand  he  was  professionally  employed  to  make, 
or  any  papers  with  which  he  was  intrusted  in  his  official  capacity,  he 
shall,  if  an  attorney  in  fact,  be  fined  not  less  than  one  hundred,  nor 
more  than  three  hundred  dollars  ;  and  if  a  counsellor  at  law,  or 
attorney  at  law,  shall  be  suspended  from  the  exercise  of  his  profession, 
not  less  than  six,  nor  more  than  twelve  months,  and  until  he  shall  have 
paid  the  sum  due,  with  interest. 

Art.  185.  No  attorney  or  counsellor  at  law,  or  attorney  in  fact,  shall 
be  liable,  under  the  preceding  article,  for  retaining  out  of  the  moneys 
by  him  received,  any  sum  due  to  him  by  his  employer,  for  any  liqui- 
dated debt  due  to  him,  or  for  legal  or  customary  and  reasonable  fees  and 
costs  or  commissions  ;  nor  shall  he  be  guilty  of  any  offence  in  retain- 
ing any  papers  or  securities  he  may  have  received  until  such  sums  be 
paid,  as  may  be  due  for  costs  or  fees  in  any  suit  or  controversy,  for 
the  defence  or  prosecution  of  which  the  papers  were  delivered  to  him ; 
nor  for  not  delivering  papers  that  have  been  casually  lost  or  destroyed. 

Art.  186.  If  any  attorney  or  counsellor  at  law  shall  fraudulently  com- 
mence, prosecute  or  defend  any  suit  in  any  court  in  this  state,  in  the 
name  of  any  person  by  whom  he  has  not  been  authorized  to  prosecute 
or  defend  such  suit,  he  shall  be  suspended  from  the  exercise  of  his  pro- 
fession, not  less  than  six  months,  nor  more  than  two  years. 

Art.  187.  Whoever  shall  bribe  or  offer  to  bribe  any  attorney  or 
counsellor  at  law,  or  any  attorney  in  fact,  who  is  charged  with  the  con- 
ducting a  suit  in  court,  shall  be  imprisoned  in  close  custody,  not  less 
than  one  nor  more  than  six  months,  and  shall  pay  a  fine  equal  to  four 
times  the  amount  of  the  bribe  given  or  offered. 

Art.  188.  All  offences  committed  by  counsellors  or  attorneys  at  law, 
shall  be  tried  in  the  same  manner  as  other  offences,  except  as  is  herein- 
after provided,  in  the  case  of  offences  committed  in  the  courts  of  justice. 


CHAPTER  IX. 


Of  offences  by  falsely  personating  another  in  judiciary  proceedings. 

Art.  189.  If  any  one,  not  being  an  officer  of  justice,  shall  fraudu- 
lently pretend  to  be  such,  and  in  such  assumed  character  shall  commit 
any  assault,  or  false  imprisonment,  or  receive  or  attempt  to  receive  pro- 
perty, he  shall  be  imprisoned  at  hard  labour  not  less  than  three,  nor 
more  than  six  years,  in  addition  to  the  punishment  incurred  by  the 
other  offence  he  may  commit. 

Art.  190.  If  any  one  shall  falsely  PERSONATE  ANOTHER,  and  in  such 
assumed  character  shall  become  bail,  confess  judgment,  or  do  any  other 
act  in  the  course  of  any  procee'ding  in  any  suit  or  prosecution,  he  shall 
be  imprisoned  at  hard  labour  not  less  than  two  nor  more  than  five 
years,  in  addition  to  the  punishment  he  may  incur  by  any  other  offence 
he  may  commit  in  such  assumed  character. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  393 


CHAPTER  X. 


Of  perjury  and  false  swearing. 

Art.  191.  Perjury  is  a  falsehood,  asserted  verbally  or  in  writing,  de- 
liberately and  wilfully,  relating  to  something  present  or  past,  under  the 
sanction  of  an  oath,  or  such  other  affirmation  as  is  or  may  be  by  law 
made  equivalent  to  an  oath,  legally  administered,  under  circumstances 
in  which  an  oath  or  affirmation  is  required  by  law,  or  is  necessary  for 
the  prosecution  or  defence  of  private  right,  or  fcr  the  ends  of  public 
justice.  Perjury  is  punished  by  penitentiary  imprisonment,  not  less 
than  three,  nor  more  than  seven  years  ;  by  a  forfeiture  of  all  political 
rights,  and  of  civil  rights  of  the  first  and  third  class.  But  if  any  one 
by  means  of  perjury  shall  cause  another  to  be  convicted  of  a  crime, 
he  shall  suffer  the  same  punishment  that  is  incurred  by  the  commission 
of  the  crime  of  which  such  person  has  been  convicted  by  means  of  the 
perjury. 

Art.  192.  Falsehood  in  this  definition  refers  to  the  belief  of  the  party 
attesting ;  therefore  if  he  believes  what  he  swears  to  be  false,  and  it 
should  happen  to  be  true,  he  is  as  guilty  of  the  offence  as  if  he  had 
sworn  that  to  be  true  which  he  knew  to  be  false. 

Art.  193.  The  declaration  must  be  deliberate;  a  false  statement  made 
inadvertently,  or  under  agitation,  or  by  mistake,  is  not  perjury. 

Art.  194.  It  must  be  with  design  to  make  the  falsehood  believed  by 
another,  the  party  taking  the  oath  knowing  or  believing  it  to  be  false; 
and  this  design  is  presumed  whenever  the  falsehood  of  the  declaration 
is  proved. 

Art.  195.  The  oath  or  affirmation  must  be  administered  in  the  manner 
required  by  law,  and  by  a  magistrate,  or  other  person  duly  authorized 
to  administer  oaths  in  the  matter  or  cause  in  which  the  oath  was  taken. 

Art.  196.  The  declaration,  to  constitute  perjury,  must  be  of  some- 
thing present  or  past;  a  promissory  oath,  although  broken,  is  not  perjury. 
An  oath  of  office  is  one  of  this  last  description. 

Art.  197.  The  occasion  of  taking  the  oath,  in  the  description  of  the 
offence,  includes  those  taken  in  every  stage  of  a  judicial  proceeding, 
either  civil  or  criminal,  either  in  or  out  of  court ;  and  all  declaratory 
oaths  required  by  special  laws,  whether  they  impose  the  penalty  of 
perjury  or  not. 

Art.  198.  As  the  falsehood  must  be  wilful  and  deliberate  to  constitute 
the  crime;  the  assertion  of  any  circumstance,  so  immaterial  to  the  mat- 
ter in  relation  to  which  the  declaration  is  made,  as  reasonably  to  induce 
a  belief  that  it  was  not  intended  to  conceal  the  truth  or  assert  a  false 
hood,  is  not  perjury;  although  the  circumstance  be  not  true. 

Art.  199.  It  is  not  necessary  to  complete  this  offence,  that  any  credit 
should  be  given  to  the  false  declaration. 

Art.  200.  Whoever  shall  deliberately  and  wilfully,  under  oath,  or  af- 
firmation, (in  cases  where  it  is  by  law  equivalent  to  an  oath),  legally  , 
administered,  declare  a  falsehood,  by  a  voluntary  declaration  or  affidavit, 
which  is  neither  required  by  law  nor  made  in  the  course  of  any  judicial 
2Z 


394  CODE  OF  CRIMES  AND  PUNISHMENTS. 

proceeding,  is  guilty  of  false  swearing,  and  shall  be  confined  in  close 
custody  not  less  than  one  nor  more  than  six  months;  and  the  conviction 
of  such  an  offence  may  be  produced  as  evidence  against  his  CREDIT  in 
any  court  where  he  may  be  offered  as  a  witness. 

Art.  201.  The  punishment  for  the  offence  mentioned  in  the  last  pre- 
ceding article  is  independent  of  any  that  may  be  inflicted  for  the  publi- 
cation of  the  affidavit,  should  it  be  a  libel. 

Art.  202.  The  term  declaratory  oath,  or  declaratory  affidavit,  in  this 
section,  means  an  oath  made  to  the  truth  of  something  present  or  past, 
and  is  used  in  contradistinction  to  promissory  oath,  which  is  a  stipula- 
tion confirmed  by  oath,  that  some  act  shall  be  done  or  omitted,  or  some 
event  take  place  in  future.  The  breach  of  this  last  description  of  oaths, 
does  not  amount  either  to  perjury  or  to  false  swearing,  except  as  will  be 
hereafter  provided  in  the  case  of  officers  of  justice  for  duties  done  in 
court. 

Art.  203.  Whoever  shall  designedly,  by  any  MEANS  whatever,  induce 
another  to  commit  perjury,  or  to  be  guilty  of  false  swearing,  shall  un- 
dergo the  same  punishment  as  if  he  had  committed  the  crime  himself. 

Art.  204.  Whoever  shall  endeavour,  by  offering  any  INDUCEMENT  or 
persuasion  whatever,  to  procure  another  to  commit  perjury,  or  to  be 
guilty  of  false  swearing,  shall  be  fined  not  less  than  fifty  nor  more  than 
three  hundred  dollars,  and  imprisoned  in  close  custody  not  less  than 
thirty  days,  nor  more  than  six  months. 


CHAPTER  XL 


Offences  against  the  judiciary  power  committed  in  a  court  of 

justice. 

Art.  205.  If  any  one  shall,  during  the  session  of  any  COURT  OP  JUSTICE, 
in  the  presence  of  the  court,  by  words  or  by  making  a  clamour  or  noise, 
wilfully  obstruct  the  proceedings  of  such  court,  or  shall  refuse  to  obey 
any  legal  order  of  such  court  made  for  the  maintenance  of  order  or  to 
preserve  regularity  of  proceedings  in  court,  it  shall  be  lawful  for  the 
said  court  to  cause  the  offender  to  be  removed  by  the  proper  officer  of 
justice  from  the  building  in  which  the  sessions  of  such  court  are  held  ; 
and  if  such  offender  shall  persevere  in  returning  to  and  disturbing  said 
court,  it  shall  also  be  lawful  for  them  to  cause  him  to  be  imprisoned 
during  the  time  the  court  shall  be  in  session  during  the  same  day;  and 
the  party  offending  against  this  article,  is  guilty  of  a  misdemeanor,  and 
shall  be  punished  by  fine  not  exceeding  twenty  dollars,  and  by  impri- 
sonment not  exceeding  three  days. 

Art.  206.  If  any  person  shall,  either  verbally  in  court,  or  in  any 
pleading  or  other  writing  addressed  to  the  judges  in  any  cause  pending 
in  any  court  of  justice,  use  any  indecorous,  contemptuous  or  insulting 
expressions,  to  or  of  the  court  or  the  judges  thereof,  with  intent  to  in- 
sult the  said  court  or  any  of  the  said  judges,  he  shall  be  punished  by 
simple  imprisonment  not  more  than  fifteen  days,  and  by  fine  not  exceed- 
ing fifty  dollars;  and  the  fact  of  the  intent,  with  which  the  words  were 
used,  and  also  whether  they  were  indecorous,  contemptuous  and  in- 


CODE  OF  CRIMES  AND  PUNISHMENTS.  395 

suiting,  shall  be  decided  by  the  jury,  who  shall  try  the  cause.  The 
said  punishment  shall  be  doubled  on  a  second  conviction  for  an  offence 
under  this  article;  and  for  a  third,  the  party  shall,  in  addition  to  the  said 
punishment,  if  an  attorney  or  counsellor,  be  suspended  for  not  less  than 
one  nor  more  than  four  years  from  practising  in  the  said  court  as  attor- 
ney or  counsellor  at  law,  or  as  attorney  in  fact. 

Art.  207.  If  any  one  shall  obstruct  the  proceedings  of  a  court  of  jus- 
tice by  violence,  or  threats  of  violence,  offered  either  to  the  judges, 
jurors,  witnesses,  parties,  or  attorneys  or  counsellors,  he  shall  be  fined 
in  a  sum  not  less  than  one  hundred  and  not  exceeding  five  hundred 
dollars,  and  by  imprisonment,  in  close  custody,  not  less  than  ten  days 
nor  inore  than  six  months  ;  and  if  the  offender  be  an  attorney  or  coun- 
sellor at  law,  he  shall  be  suspended  from  practising  in  such  court  for 
not  less  than  one  nor  more  than  three  years,  either  as  attorney  or 
counsellor  at  law,  or  as  attorney  in  fact. 

Art.  208.  Courts  of  justice  have  no  power  to  inflict  any  punishment 
for  offences  committed  against  their  authority,  other  than  those  specially 
provided  for  by  this  Code  and  the  Code  of  Procedure.  All  proceedings 
for  offences,  heretofore  denominated  contempts,  are  abolished.  All 
offences  created  by  this  chapter,  shall  be  tried  on  indictment,  or  infor- 
mation, in  the  usual  form. 


TITLE  VI. 


OP  OFFENCES  AGAINST  PUBLIC  TRANQUILLITY. 


CHAPTER  I. 

Of  unlawful  assemblies  and  riots. 

Art.  209.  If  any  three  or  more  persons  shall  ASSEMBLE  with  intent  to 
aid  each  other  by  violence,  either  to  commit  an  offence,  or  illegally  to 
deprive  any  person  of  the  enjoyment  of  a  right,  such  assembly  shall  be 
called  an  unlawful  assembly,  and  those  guilty  thereof  shall  be  fined  not 
less  than  fifty  nor  more  than  three  hundred  dollars,  and  shall  be  impri- 
soned not  less  than  three  nor  more  than  twelve  months,  in  close  custody. 

Art.  210.  If  persons,  assembled  for  either  of  the  purposes  mentioned 
in  the  last  preceding  article,  shall,  by  VIOLENCE,  commit  any  illegal  act, 
they  are  guilty  of  a  riot,  and  in  addition  to  the  punishment  to  which 
they  may  be  liable  by  reason  of  the  illegal  act  they  may  commit,  if  it 
be  an  offence,  they  may  be  suspended  from  their  political  rights  for 
three  years,  shall  be  fined  not  less  than  fifty  nor  more  than  five  hun- 
dred dollars,  and  imprisoned  not  less  than  three  nor  more  than  eighteen 
months  in  close  custody,  for  at  least  one  half  the  time,  or  more,  at  the 
discretion  of  the  court. 

Art.  211.  If  the  purpose  of  the  unlawful  assembly  be  illegally  to 
oppose  the  collection  of  any  taxes,  tolls,  imposts,  or  excises  legally  im- 


396  CODE  OF  CRIMES  AND  PUNISHMENTS. 

posed,  or  the  execution  of  any  law  of  the  state,  or  any  lawful  sentence 
of  a  court,  or  to  effect  the  rescue  of  a  prisoner  legally  arrested  for  any 
crime,  the  punishment  for  that  offence  shall  be  increased  one  half. 

Art.  212.  If  a  riot  be  committed  for  either  of  the  purposes  set  forth 
in  the  last  preceding  article,  the  punishment  hereinbefore  imposed  for 
that  offence  shall  be  doubled. 

Art.  213.  If  any  person  engaged  in  an  unlawful  assembly,  before  the 
unlawful  object  of  such  meeting,  or  any  other  offence  except  such  un- 
lawful meeting,  has  been  committed  by  them,  or  those  with  whom  they 
are  combined,  shall  either  voluntarily,  or  on  being  warned  by  a  magis- 
trate, retire  therefrom,  without  the  intent  to  return,  he  shall  not  be 
prosecuted  for  being  concerned  in  the  unlawful  assembly,  or  for  any 
riot  or  other  offence  of  which  any  persons  concerned  in  it  may  after- 
wards be  guilty,  provided  he  do  not  return  to  the  said  assembly. 

Art.  214.  Any  one  person  concerned  in  an  unlawful  assembly,  may 
be  indicted  and  convicted  before  the  others  are  arrested  ;  but  it  is  ne- 
cessary to  state  in  the  indictment,  and  prove  on  the  trial,  that  three  or 
more  persons  were  assembled ;  if  known,  they  must  be  described  or 
named ;  if  unknown,  it  must  be  so  alleged. 

It  is  necessary  to  state,  in  an  indictment  for  either  of  those  offences, 
the  illegal  act  which  was  the  object  of  the  meeting,  or  which  they  pro- 
ceeded to  do  if  the  assembly  was  originally  for  a  lawful  purpose. 

Art.  215.  If  three  or  more  persons  assemble  for  a  lawful  purpose,  and 
they  afterwards  proceed  to  commit  any  act  that  would  amount  to  a  riot, 
if  it  had  been  the  original  purpose  of  the  meeting,  all  those  who  do  not 
retire  when  the  change  of  purpose  is  known,  are  guilty  of  a  riot. 

Art.  216.  If  two  or  more  persons  engaged  in  an  unlawful  assembly  or 
riot  are  ARMED,  the  punishment  of  the  person  so  armed  shall  be  doubled  ; 
and  of  those  who  assisted  in  such  assembly,  when  part  were  armed, 
although  they  themselves  were  unarmed,  shall  be  increased  one  half. 

Art.  217.  If  any  judge,  military  officer  or  executive  officer,  or  officer 
of  justice,  shall  be  engaged  in  an  unlawful  assembly  or  riot,  his  punish- 
ment shall  be  doubled. 

Art.  218.  When  proof  shall  be  made  to  any  magistrate,  by  the  oath 
of  two  or  more  credible  witnesses,  of  the  existence  of  any  unlawful  as- 
sembly or  riot,  consisting  of  more  than  twenty  persons,  it  shall  be  the 
duty  of  such  magistrate  to  go  to  the  place  where  the  unlawful  assembly 
is,  and  he  shall  there  proclaim  the  office  which  he  holds,  and  order  such 
unlawful  assembly  to  disperse  ;  and  that  he  may  be  the  better  known 
and  distinguished,  he  shall  display  a  white  flag  ;  and  if  the  offenders 
shall,  after  being  so  warned,  proceed  to  commit  a  riot,  they  shall  be 
imprisoned  at  hard  labour,  not  less  than  one,  nor  more  than  three  years, 
in  addition  to  the  other  punishment  for  any  other  offence  of  which  they 
may  be  guilty  by  such  riot  or  illegal  assembly. 

Art.  219.  Any  one  being  in  the  said  assembly  at  the  time  such  order 
was  given,  or  having  joined  it  afterwards,  (provided  this  last  have 
notice  of  such  order),  who  shall  be  found  therein  after  the  expiration  of 
half  an  hour,  shall,  if  no  other  offence  be  committed,  be  imprisoned,  in 
close  custody,  not  less  than  one  nor  more  than  six  months,  or  fined  not 
less  than  fifty,  nor  more  than  three  hundred  dollars.  And  immediately 
ifter  the  expiration  of  the  said  half  hour,  or  before,  if  any  other  illegal 
act  be  committed,  it  shall  be  lawful  for  any  magistrate,  or  minister  of 
justice,  to  arrest  any  of  those  composing  the  said  assembly  who  shall 


CODE  OF  CRIMES  AND  PUNISHMENTS.  397 

disobey  such  order,  or  to  cause  them  to  be  arrested  with  or  without 
warrant ;  and  for  that  purpose,  any  magistrate  may  call  for  the  assist- 
ance of  any  person  who  may  be  within  three  miles  of  the  place  where 
the  said  unlawful  assembly  shall  be,  to  aid  him  in  the  arrest  of  the 
said  offenders  ;  and  such  arrest  shall  be  made  in  the  manner  directed 
by  the  Code  of  Procedure,  in  the  chapter  relative  to  Arrests. 

Art.  220.  If  any  free,  able-bodied  male  person,  above  eighteen  years 
of  age  and  under  fifty,  shall  be  called  on  to  aid  in  arresting  the  offenders 
in  the  manner  directed  by  the  last  preceding  article,  and  shall  refuse  or 
neglect  so  to  do,  such  person  shall  be  fined  fifty  dollars. 

Art.  221.  Any  assembly,  for  the  purpose  of  witnessing  a  boxing 
match,  is  an  unlawful  assembly. 

If  any  boxing  match  takes  place  at  such  assembly,  it  is  a  riot,  for 
which  the  combatants,  and  each  of  those  who  lay  a  wager  on  the  event 
of  such  combat,  shall  be  fined  not  less  than  ten,  nor  more  than  one 
hundred  dollars,  or  may  be  imprisoned  not  less  than  ten,  nor  more 
than  twenty  days,  in  close  custody,  or  both  ;  and  those  who  are  guilty 
of  the  riot,  without  laying  a  wager  on  the  combat,  shall  be  fined  not 
less  than  five,  nor  more  than  fifty  dollars ;  or  may  be  imprisoned  ten 
days  in  close  custody. 


CHAPTER  II. 


Of  public  disturbance. 

Art.  222.  Those  are  guilty  of  making  a  public  disturbance,  who, 
without  any  such  intent  as  would  give  to  a  meeting  the  character  of  an 
unlawful  assembly,  shall,  to  the  number  of  two  or  more,  meet  or  assem- 
ble in  a  tumultuous  manner,  in  a  public  place,  and  by  vociferation, 
quarrelling,  or  fighting,  disturb  the  inhabitants  of  the  place  in  the  pro- 
secution of  their  lawful  business,  or  in  their  necessary  repose.  Public 
disturbers  shall  be  fined  not  exceeding  twenty  dollars,  or  imprisoned 
not  exceeding  ten  days,  or  both. 

Art.  223.  All  magistrates  and  officers  of  justice  are  required  to  arrest, 
or  cause  to  be  arrested,  persons  guilty  of  this  offence,  on  their  own 
view,  or  on  complaint,  with  or  without  warrant. 

Art.  224.  No  public  meeting,  for  the  purpose  of  exercising  any  politi- 
cal or  private  right ;  no  assembly  for  the  purpose  of  legal  recreation, 
or  the  expression  of  dissatisfaction  or  approbation  made  in  such  assembly 
in  the  usual  manner,  although  it  may  disturb  those  in  the  vicinity,  is 
an  offence  under  this  chapter. 

Art.-  225.  The  police  of  places  of  public  amusement  continues  under 
the  superintendence  of  the  mayors,  or  other  first  magistrates  of  cities 
and  towns. 


398  CODE  OF  CRIMES  AND  PUNISHMENTS. 


TITLE  VII. 


OF   OFFENCES   AGAINST   THE   RIGHT   OF   SUFFRAGE. 


CHAPTER  1. 


Of  bribery  and  undue  influence. 

Art.  226.  Whoever  shall  offer  or  give  a  BRIBE  to  any  elector,  for  the 
purpose  of  influencing  his  vote  at  any  PUBLIC  ELECTION,  and  any  elector 
entitled  to  vote  at  such  election  who  shall  receive  such  bribe,  shall  be 
fined  not  less  than  one  hundred,  nor  more  than  five  hundred  dollars, 
shall  forfeit  all  his  political  rights,  and  be  confined  in  close  custody  not 
less  than  six  months,  nor  more  than  one  year. 

Art.  227.  Whoever  shall  give  or  offer  a  bribe  to  any  JUDGE  or  clerk 
of  any  public  election,  or  any  executive  officer  attending  the  same,  as 
a  consideration  for  some  act  done,  or  omitted  to  be  done,  or  to  be  done 
or  omitted  contrary  to  his  official  duty  in  relation  to  such  election,  shall 
pay  a  fine  not  less  than  one  hundred,  nor  more  than  five  hundred  dol- 
lars, shall  forfeit  all  political  rights,  and  shall  be  confined  in  close  cus- 
tody not  less  than  one,  nor  more  than  two  years. 

Art.  228.  If  any  one  shall  offer  or  give  a  reward  to  any  person  what- 
ever, for  the  purpose  of  inducing  him  to  persuade,  or  by  any  other  means 
not  amounting  to  bribery,  to  procure  persons  to  vote  at  any  PUBLIC 
ELECTION,  for  or  against  any  person,  the  person  so  giving  or  offering, 
and  he  who  shall  receive  such  reward,  shall  forfeit  not  less  than  fifty, 
nor  more  than  one  hundred  dollars. 

Art.  229.  Whoever  shall  procure  or  endeavour  to  procure  the  vote  of 
any  elector,  or  the  influence  of  any  person  over  other  electors  at  any 
public  election,  for  himself  or  any  candidate,  by  means  of  VIOLENCE, 
threats  of  violence,  or  threats  of  withdrawing  custom  or  dealing  in 
business  or  trade,  or  of  enforcing  the  payment  of  a  debt,  or  bringing  a 
suit  or  criminal  prosecution,  or  any  other  threat  of  injury  to  be  inflict- 
ed by  him  or  by  his  means,  the  person  so  offending,  shall  forfeit  not 
less  than  fifty,  nor  more  than  three  hundred  dollars,  and  be  confined  in 
close  custody,  not  less  than  one,  nor  more  than  six  months,  and  shall 
be  suspended  from  the  exercise  of  his  political  rights  for  four  years. 


CHAPTER  II. 


Of  offences  committed  by  the  judges  or  other  officers  of  elections. 

Art.  230.  If  any  judge  or  clerk  of  any  public  election,  or  executive 
officer  attending  the  same,  shall  knowingly  make  or  consent  to  any 


CODE  OF  CRIMES  AND  PUNISHMENTS.  399 

false  entry  on  the  list  of  voters  ;  put  into  the  ballot  box,  or  permit  to 
be  so  put  in,  any  ballot  not  given  by  a  voter  ;  or  take  out  of  such  box, 
or  permit  to  be  so  taken  out,  any  ballot  deposited  therein,  except  in  the 
manner  prescribed  by  law  ;  or  by  any  other  act  or  omission,  designed- 
ly destroy,  or  change  the  ballots  given  by  the  electors ;  the  offender 
shall  pay  a  fine  of  not  less  than  five  hundred,  nor  more  than  one  thou- 
sand dollars,  forfeit  his  political  rights,  and  be  imprisoned  in  close  con- 
finement, not  less  than  six  months,  nor  more  than  one  year. 

Art.  231.  Any  such  judge  who  shall  proceed  to  any  such  election,, 
without  having  the  ballot  box  locked  and  secured  in  the  manner  directed 
by  law  ;  or  who  shall  open  and  read,  or  consent  to  any  other  person 
opening  and  reading  any  ballot  given  to  him  to  deposit  in  the  box  at 
such  election,  before  it  is  put  into  the  box,  without  the  consent  of  the 
voter  giving  the  same,  shall  be  fined  one  hundred  dollars. 

Art.  232.  Any  judge  of  a  public  election,  who  before  the  votes  are 
counted,  shall  dispose  of,  or  deposit  the  ballot  box,  in  a  manner  not 
authorized  by  law  ;  or  shall  at  any  time  after  the  election  has  begun, 
and  before  the  ballots  are  counted,  give  the  key  of  the  ballot  box  with 
which  he  is  intrusted  to  any  other,  the  person  so  offending  shall  pay 
a  fine  of  five  hundred  dollars. 

Art.  233.  When  any  one  who  offers  to  vote  at  any  such  election,  shall 
be  objected  to  by  an  elector,  as  a  person  unqualified  to  vote,  if  any  judge 
of  such  election  shall  permit  him  to  vote  without  producing  proof  of 
such  qualification,  in  the  manner  directed  by  law  ;  or  if  any  such  judge 
shall  refuse  the  vote  of  any  person,  who  shall  comply  with  the  requi" 
sites  prescribed  by  law  to  prove  his  qualifications,  knowing  him  to  be 
entitled  to  vote,  he  shall  forfeit  for  such  offence,  one  hundred  dollars, 
and  if  the  offence  be  committed  for  the  purpose  of  favouring  or  injur- 
ing the  election  of  any  candidate,  shall  moreover  be  suspended  from 
the  exercise  of  his  political  rights,  for  five  years. 

Art.  234.  If  any  judge,  or  clerk,  or  executive  officer,  shall  designedly 
omit  to  do  any  official  act  required  by  the  law,  or  designedly  do  any 
illegal  act,  in  relation  to  any  public  election,  by  which  act  or  omission 
the  votes  taken  at  any  such  election  in  any  city,  parish  or  district,  shall 
be  lost,  or  the  electors  thereof  shall  be  deprived  of  their  suffrages  at 
such  election,  or  shall  designedly  do  any  act  which  shall  render  such 
election  void,  he  shall  be  fined  not  less  than  one  hundred  nor  more 
than  five  hundred  dollars,  shall  forfeit  his  political  rights,  and  shall  be 
confined  in  close  custody  not  less  than  six  months  nor  more  than  one  year. 


CHAPTER  III. 


Of  violence  and  riots  at  elections,  and  of  the  protection  of  electors 

from  arrest. 

Art.  235.  It  shall  not  be  lawful  for  any  military  officer,  or  other  per- 
son, to  order  or  bring,  or  keep  any  troops  or  armed  men,  at  any  place 
within  a  mile  of  the  place  where  any  public  election  is  held,  on  any 
day  during  which  the  same  shall  be  held,  under  the  penalty  of  five  hun- 
dred dollars  ;  unless  it  be  for  the  purpose  of  quelling  a  riot  or  insur- 


400  CODE  OF  CRIMES  AND  PUNISHMENTS. 

rection,  in  the  manner  provided  by  law,  or  for  the  purpose  of  defence 
in  time  of  war,  and  if  the  offence  shall  be  committed  with  intent  to  in- 
fluence such  election,  he  shall  moreover  be  imprisoned  not  less  than 
thirty  nor  more  than  sixty  days  in  close  custody,  and  shall- forfeit  his 
political  rights.  This  article  does  not  apply  to  troops  of  the  United 
States,  usually  stationed  within  a  mile  of  the  place  of  election,  and 
kept  there  during  the  same. 

Art.  236.  If  any  one  shall,  by  illegal  force,  or  threats  of  such  force, 
prevent  or  endeavour  to  prevent  any  elector  from  giving  his  vote  ;  or 
shall,  at  the  place  of  election,  commit  any  assault  or  battery  on  any 
elector,  he  shall  be  fined  not  less  than  fifty  nor  more  than  two  hundred 
dollars,  shall  be  imprisoned  in  close  custody  not  less  than  thirty  days 
nor  more  than  six  months,  and  shall  be  suspended  from  his  right  of 
suffrage  for  two  years. 

Art.  237.  If  any  riot  be  committed  at  any  place  of  any  public  election 
or  within  half  a  mile  of  such  place,  during  the  time  that  the  polls  are 
open,  the  offender  shall,  in  addition  to  the  punishment  imposed  by  law 
for  a  riot,  also  suffer  imprisonment,  in  close  custody,  for  not  less  than 
thirty  nor  more  than  sixty  days  ;  and  if  the  riot  shall  have  been  made 
for  the  purpose  of  influencing  the  election,  shall  be  suspended  from  the 
right  of  suffrage  for  two  years. 

Art.  238.  No  elector  shall  be  arrested  at  any  civil  suit,  or  on  any 
warrant,  except  for  a  crime  or  a  breach  of  the  peace,  or  in  order  to  ob- 
tain surety  of  the  peace,  during  any  day  on  which  a  public  election  is 
held,  or  while  going  to  or  returning  from  such  election  ;  and  any  exe- 
cutive officer  of  justice,  or  other  person,  making  or  causing  such  arrest, 
contrary  to  this  article,  knowing  the  person  arrested  to  be  an  elector, 
shall  be  fined  not  less  than  fifty  nor  more  than  two  hundred  dollars. 


TITLE  VIII. 


OF   OFFENCES   AGAINST   THE   LIBERTY  OF   THE   PRESS. 

Art.  239.  The  constitution  of  this  state  having  declared,  that  "  print- 
ing presses  shall  be  free  to  every  person  who  undertakes  to  examine  the 
proceedings  of  the  legislature  or  any  branch  of  the  government,"  and 
that  "the  free  communication  of  thoughts  and  opinions  is  one  of  the 
invaluable  rights  of  man,"  and  that  "every  citizen  may  freely 
speak,  write,  and  print,  on  any  subject,  being  responsible  for  the  abuse 
of  that  liberty,"  it  is  declared  to  be  a  misdemeanor  for  any  one  by 
violence,  or  threats  of  violence,  or  threats  of  any  injury  to  person,  pro- 
perty or  credit,  to  prevent,  or  endeavour  to  prevent  any  person  from 
exercising  any  of  the  rights  asserted  in  the  parts  of  the  constitution 
above  recited,  and  the  offender  shall  pay  a  fine  of  not  less  than  fifty  nor 
more  than  five  hundred  dollars. 

Art.  240.  If  any  member  of  the  general  assembly,  or  any  judge  or 
judicial  or  executive  officer,  shall  be  guilty  of  the  offences  created  by  the 
last  preceding  article,  in  order  to  prevent  an  investigation  of  his  official 
conduct,  or  that  of  the  branch  of  the  government  to  which  he  belongs  : 


CODE   OF  CRIMES  AND  PUNISHMENTS.  401 

Or,  if  any  judge  or  judicial  or  executive  officer  shall,  by  the  exercise 
of  any  act  of  his  office  or  the  threat  thereof,  prevent,  or  endeavour  to 
prevent  any  person  from  exercising  any  of  the  rights  declared  in  the 
parts  of  the  constitution  above  recited,  he  shall  be  fined  not  less  than 
three  hundred  nor  more  than  one  thousand  dollars,  shall  suffer  impri- 
sonment not  less  than  sixty  days  nor  more  than  six  months,  in  simple 
imprisonment  or  close  custody,  at  the  discretion  of  the  court,  and  be 
suspended  for  four  years  from  the  exercise  of  his  political  rights. 

Art.  241.  Nothing  in  this  chapter  contained  shall  render  it  unlawful 
for  any  person,  who  is  apprehensive  that  a  libel  is  about  to  be  publish- 
ed, or  that  any  literary  property  is  about  to  be  invaded  by  any  publi- 
cation, from  endeavouring  to  prevent  it  by  threats  of  a  suit  or  prosecu- 
tion, or  from  commencing  such  suit  or  prosecution  for  any  such  libel, 
should  it  be  published,  or  for  such  invasion  of  literary  property,  should 
it  be  made.  •'*• 

Art.  242.  The  constitution  having  declared,  that  no  law  shall  ever  be 
made  to  restrain  the  right  to  examine  the  proceedings  of  the  legislature, 
or  any  branch  of  the  government,  any  judicial  or  executive  officer  or 
other  person,  who,  under  pretence  or  colour  of  any  existing  law,  or 
laws  that  may  hereafter  be  passed,  shall  prevent,  restrain,  or  attempt 
to  restrain  or  prevent  the  exercise  of  the  right  asserted  in  that  part  of 
the  constitution  above  recited  in  this  article,  shall  be  fined  not  less 
than  three  hundred  nor  more  than  one  thousand  dollars. 

Art.  243.  If  any  court,  judge  or  other  officer,  shall  enjoin,  restrain 
or  prevent  the  printing  and  publishing  of  any  WRITING  whatever, 
under  the  allegation,  whether  true  or  false,  that  such  writing  contains 
a  libel  or  seditious  words,  or  under  any  other  pretext,  or  for  any  other 
reason  than  is  contained  in  the  next  article,  the  judges  of  such  court 
assenting  to  such  order,  and  the  judge  (if  done  out  of  court)  or  other 
officer,  offending  against  this  article,  shall  severally  be  fined  not  less 
than  five  hundred  nor  more  than  one  thousand  dollars,  and  shall  be 
suspended  from  their  political  rights  for  two  years. 

Art.  244.  It  is  no  infringement  of  the  last  article  to  grant  an  injunc- 
tion against  the  publication  of  any  literary  work,  on  the  application  of  a 
person  who  shall  satisfy  the  court  or  judge  granting  the  injunction, 
that  he  is  the  author  or  proprietor  of  the  work  intended  to  be  published, 
and  that  the  publication  will  be  injurious  to  his  rights ;  nor  shall  it  be 
considered  as  a  breach  of  the  said  article  for  a  court  of  justice,  in  which 
any  one  shall  be  convicted  of  publishing  a  libel,  to  require  security  in 
the  manner  directed  by  the  chapter  of  this  code  concerning  libels,  nor 
for  a  magistrate  to  make  an  admonition  in  the  manner  provided  by  the 
Code  of  Procedure  against  the  publication  of  a  libel  or  publication 
against  decency. 


3  A 


403  CODE  OF  CRIMES  AND  PUNISHMENTS. 


TITLE  IX. 


OF  OFFENCES  AFFECTING  PUBLIC  RECORDS. 

Art.  245.  If  any  one  shall  FORGE,  or  FRAUDULENTLY  carry  away, 
deface  or  destroy  any  PUBLIC  RECORD,  or  shall  FORGE  any  official  CER- 
TIFICATE of  any  OFFICER  having  the  custody  of  any  public  records  of 
registry,  he  shall  be  imprisoned  at  hard  labour  not  less  than  seven  nor 
more  than  fifteen  years,  and  shall  forfeit  his  political  rights. 

Art.  246.  To  FORGE,  in  the  sense  in  which  that  word  is  employed  in 
this  chapter,  is  to  make  a  false  record  or  official  certificate,  or  without 
authority  to  alter  a  true  one  in  such  a  manner  as  that,  if  such  false  re- 
cord were  true  or  such  alteration  were  legally  made,  some  public  or 
private  right,  or  the  condition  of  some  individual,  or  the  rights  or 
immunities  of  some  society,  corporation,  or  general  description  of  in- 
dividuals, or  some  purpose  of  public  utility,  would  be  injured,  altered 
or  destroyed,  or  some  right,  immunity,  privilege,  condition  or  pro- 
perty would  be  vested,  by  such  false  or  altered  record. 

Art.  247.  The  public  and  private  rights  mentioned  in  the  last  preced- 
ing article,  are  all  those  that  are  protected  by  the  penal  code,  or  for 
an  injury  to  which  a  private  suit  is  given  by  the  civil  code. 

Art.  248.  If  any  officer  intrusted  with  the  custody  of  PUBLIC  RECORDS, 
shall  commit  any  FORGERY  of  or  upon  such  records,  shall  intentionally 
destroy  or  deface  them,  or  conceal  or  carry  them  away,  so  that  persons 
interested  therein  cannot  have  access  to  them,  or  shall  advise  or  con- 
sent to  such  forgery,  destruction,  concealment  or  carrying  away  :  or, 

Shall  fraudulently  make  and  certify  any  entry  or  other  act  on 
such  records  in  the  name  of  one  who  was  not  present,  or  did  not  con- 
sent to  such  act :  or, 

Shall  place  any  ACT,  either  AUTHENTIC  or  under  PRIVATE  SIGNA- 
TURE, on  such  register  or  record,  under  a  date  at  which  it  was  not  re- 
gistered or  recorded,  with  intent  to  take  away  a  right,  give  an  illegal 
advantage  to  any  one :  or, 

Shall  knowingly  permit  any  one  falsely  to  PERSONATE  another  in 
the  execution  of  any  act  entered  or  to  be  entered  on  any  such  register 
or  record  ;  he  shall  be  imprisoned  at  hard  labour  not  less  than  seven 
nor  more  than  fifteen  years. 

Art.  249.  If  any  such  officer  as  is  described  in  the  last  preceding  ar- 
ticle shall,  undesignedly,  but  through  want  of  proper  care,  suffer  the 
records  intrusted  to  him,  or  any  part  of  them,  to  be  altered,  defaced, 
taken  away  or  lost;  or  shall  negligently  do  any  act,  by  virtue  or  under 
colour  of  his  office,  which  he  is  not  authorized  to  do,  or  omit  to  do  some 
official  act  which  he  ought  to  do,  by  either  of  which  acts  or  omissions 
any  one  is  INJURED  in  his  property,  condition  or  reputation,  he  shall  be 
fined  not  less  than  one  hundred  nor  more  than  four  hundred  dollars. 

Art.  250.  If  any  notary  or  other  officer,  authorized  by  law  to  reduce 
to  writing  any  authentic  acts,  or  receive  and  record  any  acts  under  pri- 
vate signature,  shall  falsely,  in  his  official  capacity,  certify  any  thing 
to  be  true  which  is  false,  whereby  any  one  is  injured  in  his  property, 


CODE  OF  CRIMES  AND  PUNISHMENTS.  403 

condition  or  reputation,  he  shall  be  fined  not  less  than  one  hundred  nor 
more  than  four  hundred  dollars,  shall  be  imprisoned  in  close  custody 
not  less  than  sixty  days  nor  more  than  one  year. 

Art.  251.  If  the  offence  described  in  the  last  preceding  article  be 
FRAUDULENTLY  committed,  the  punishment,  in  addition  to  the  fine, 
shall  be  imprisonment  at  hard  labour  not  less  than  seven  nor  more 
than  fifteen  years. 

Art.  252.  If  any  one  shall  use  any  record  of  any  act,  so  forged,  or 
fraudulently  entered,  made,  registered  or  recorded,  or  any  such  false 
declaration,  as  is  described  in  this  chapter,  either  by  offering  the  same 
in  a  court  of  justice,  or  endeavouring  by  any  other  means  to  procure 
any  advantage  therefrom,  knowing  such  act  to  be  forged,  or  fraudu- 
lently entered  or  recorded,  or  such  certificate  to  be  false  ;  he  shall  be 
fined  not  less  than  six  hundred  nor  more  than  two  thousand  dollars, 
and  imprisoned  at  hard  labour  not  less  than  seven  nor  more  than  fif- 
teen years. 


TITLE  X. 


OF  OFFENCES  AGAINST  THE  CURRENT  COIN  AND  PUBLIC  SECURITIES. 

CHAPTER  I. 

Of  offences  against  the  current  coin  of  the.  state. 

Art.  253.  Whoever  shall  counterfeit  any  GOLD  OR  SILVER  COIN,  whe- 
ther such  coin  be  of  the  United  States,  or  of  any  other  government;  or, 

Whoever  shall  PASS,  or  offer  to  pass  any  such  counterfeit  coin, 
knowing  it  to  be  counterfeit ; 

Shall  be  imprisoned  at  hard  labour  not  less  than  seven  nor  more 
than  fifteen  years. 

Art.  254.  Whoever,  with  the  intention  of  committing  the  crime  of 
counterfeiting,  or  of  aiding  therein,  shall  have  in  his  possession  any 
die,  or  other  instrument,  such  as  is  usually  employed  solely  for  the 
coinage  of  money,  or  shall  make  or  repair  any  such  die  or  other  instru- 
ment, or  shall  prepare,  or  have  in  his  possession  and  conceal  any  base 
metal  prepared  for  coinage,  shall  be  imprisoned  at  hard  labour  not  less 
than  two  nor  more  than  four  years  ;  provided,  that  if  any  of  the  acts 
specified  in  this  article  shall  be  accompanied  by  circumstances  which 
would  render  the  accused  liable,  as  an  accomplice,  for  either  of  the  crimes 
designated  in  the  first  article  of  this  chapter,  he  may  be  prosecuted  for 
such  offence. 

Art.  255.  To  counterfeit,  under  the  provisions  of  this  section,  means, 
to  make  in  the  semblance  of  a  true  gold  or  silver  coin,  one  having  in 
its  composition  a  less  proportion  of  the  precious  metal,  of  which  the 
true  coin  intended  to  be  imitated  is  composed,  than  is  contained  in  such 
true  coin,  with  intent  that  the  same  should  be  passed  as  true,  either  in 
the  United  States  or  elsewhere.  To  alter  any  coin  of  a  lower  value, 


404  CODE  OF  CRIMES  AND  PUNISHMENTS. 

with  the  like  intent,  so  as  to  make  it  resemble  one  of  a  higher  value,  is 
also  a  counterfeit.  It  is  not  necessary,  to  constitute  the  offence,  that 
the  resemblance  should  be  perfect. 

Art.  256.  The  gold  or  silver  coins  mentioned  in  this  chapter  mean 
any  pieces  of  gold  or  silver,  or  of  which  gold  or  silver  is  the  principal 
component  part,  and  which  pass  as  money  in  the  United  States,  or  in 
any  foreign  nation,  although  such  pieces  may  not  be  made  current  by 
any  law  of  the  United  States. 

Art.  257.  Whoever  shall  have  in  his  possession  any  counterfeited 
gold  or  silver  coins,  with  intent  to  pass  them  as  true,  or  to  cause  them 
to  be  passed  either  in  the  United  States  or  any  other  nation,  he  shall 
be  imprisoned  at  hard  labour  not  less  than  two  nor  more  than  four 
years. 

Art.  258.  If  any  one  shall,  with  intent  to  profit,  diminish  the  weight 
of  any  gold  or  silver  coin,  and  shall  afterwards  pass  it  for  the  same 
value  it  had  before  it  was  so  diminished,  or  shall  send  or  carry  it  to  he  so 
passed  to  any  other  place,  whether  in  the  United  States  or  elsewhere, 
he  shall  be  fined  not  less  than  two  hundred,  nor  more  than  five  hun- 
dred dollars,  and  be  imprisoned  not  less  than  one  nor  more  than  three 
years. 

Art.  259.  To  constitute  the  crime  of  PASSING,  under  the  provisions  of 
this  section,  it  is  not  necessary  that  the  counterfeit  coin  should  have 
been  given  at  the  full  value  of  the  true  coin  of  the  same  denomination; 
the  crime  is  complete  by  delivering  the  counterfeit  coin,  knowing  it  to 
be  counterfeit,  to  another,  if  such  delivery  is  made  either  for  the  pur- 
pose of  defrauding  the  person  to  whom  it  is  delivered,  or  for  the  pur- 
pose of  enabling  him  to  deceive  others. 

Art.  260.  The  general  provisions  in  this  code,  relative  to  attempts  to 
commit  offences,  and  to  accomplices  and  accessaries,  apply  to  the  of- 
fences mentioned  in  this  chapter. 


CHAPTER  II. 


Of  offences  against  the  public  securities. 

Art.  261.  All  offences  coming  under  this  head  are  provided  for  in  the 
chapter  concerning  offences  against  the  public  revenue,  or  in  that  con- 
cerning offences  affecting  written  contracts. 


TITLE  XI. 


OF  OFFENCES  AFFECTING  THE  PUBLIC  REVENUE. 

Art.  262.  If  any  oppicEK,or  other  person  legally  empowered  to  receive 
any  money,  or  SECURITY  FOR  MONEY,  for  the  state,  or  for  any  public  cor- 
poration, shall  illegally  appropriate  any  such  moneys  or  securities  for 


CODE  OF  CRIMES  AND  PUNISHMENTS.  405 

money  to  his  own  use,  or  to  the  use  of  any  other  person,  and  shall,  by 
rendering;  false  accounts,  or  producing  false  vouchers,  or  in  any  other 
manner  endeavour  to  conceal  such  illegal  appropriation,  with  intent  to 
defraud  the  state  or  the  public  corporation,  to  whom  the  said  moneys 
belonged,  of  the  same,  or  any  part  thereof,  he  shall  pay  a  fine  equal  to 
double  the  yearly  emolument  of  his  office,  shall  be  imprisoned  not  less 
than  two  nor  more  than  six  months,  and  shall  forfeit  his  political  rights. 

Art.  263.  No  public  officer  or  other  person  who  is  or  shall  be  au- 
thorized to  collect  or  receive  moneys,  or  securities  for  the  payment  of 
money  for  the  state  or  any  public  corporation,  shall  appropriate  the 
same,  or  any  part  thereof,  to  his  own  use,  or  to  the  use  of  any  other 
person,  even  although  he  may  intend  to  restore  the  same;  and  whoever 
shall  offend  against  this  article,  if  he  do  not  pay  the  sum  so  illegally 
appropriated  within  three  days  after  demand  made  by  a  person  legally 
authorized  for  that  purpose,  shall  pay  a  fine  equal  to  double  the  amount 
which  he  shall  neglect  to  pay,  and  be  suspended  from  his  political 
rights  for  not  less  than  two  nor  more  than  four  years. 

Art.  264.  Although  any  person  who  may  offend  against  the  provisions 
of  the  last  preceding  article,  shall,  before  the  expiration  of  the  three  days 
after  demand,  or  even  before  any  demand,  replace  or  repay  the  money 
or  security  so  illegally  appropriated,  he  shall  pay  a  fine  equal  to  the 
amount  of  the  said  money,  or  the  value  of  the  said  security. 

Art.  265.  In  order  to  render  offences  against  the  preceding  articles 
more  difficult,  and  to  detect  them  when  they  occur,  every  such  receiver 
of  moneys  or  public  securities,  who  shall  receive  any  sum  or  sums  of 
money,  or  any  such  security,  whenever  and  as  often  as  they  in  the 
whole  shall  amount  to  the  value  of  three  hundred  dollars,  shall,  within 
three  days  after  such  receipt,  either  pay  or  deliver  the  same  to  the  offi- 
cer appointed  by  law  to  receive  the  same,  or  deposite  the  same  in  some 
incorporated  bank,  if  any  be  within  three  leagues  of  the  place  of  such 
receiver's  abode,  to  his  credit,  in  the  capacity  or  office  in  which  he 
shall  receive  the  same:  and  such  money  or  security  shall  not  be  drawn 
out  but  by  a  draft  or  order  specifying  to  whom  and  for  what  purpose  it 
is  to  be  paid.  And  any  such  officer  or  other  person  shall,  for  any  of- 
fence against  this  article,  pay  a  fine  not  less  than  two  hundred  nor  more 
than  six  hundred  dollars. 

Art.  266.  If  the  receiver  of  any  such  moneys  or  securities  reside  more 
than  three  leagues  from  the  place  where  such  bank  is  kept,  he  shall 
have  fifteen  days  to  make  the  deposite,  payment  or  delivery,  mentioned 
in  the  last  preceding  article  ;  and  in  cases  where  greater  distance  than 
twenty  leagues,  or  difficulty  of  travelling  may  render  it  necessary,  in 
the  opinion  of  the  treasurer  of  the  state,  to  enlarge  such  time  in  any 
particular  case,  he  may  at  his  discretion  extend  it  so  as  not  to  exceed 
thirty  days. 

Art  267.  If  any  person,  employed  to  receive  taxes  or  other  moneys 
due  to  the  state  or  any  public  corporation,  shall  EXTORT  or  attempt  to 
extort,  from  any  one  a  larger  sum  than  is  due;  or  shall  demand  or  re- 
ceive any  sum  of  money,  emolument,  service  or  favour,  as  a  considera- 
tion for  granting  any  delay  in  the  collection  of  such  dues,  or  for  doing 
or  omitting  to  do  any  act  whatever  in  relation  to  the  collection  of  such 
money,  other  than  such  emolument  as  may  be  allowed  by  law,  he  shall 
pay  a  fine  not  less  than  one-half  nor  more  than  the  whole  of  the  amount 
of  his  yearly  emoluments,  be  dismissed  from  his  office,  and  rendered 


406  CODE  OF  CRIMES  AND  PUNISHMENTS. 

incapable  of  being  re-appointed  or  re-elected  to  any  public  office  for 
not  less  than  one  nor  more  than  two  years. 

Art.  268.  If  any  one  shall  by  force  attempt  to  prevent  any  officer  or 
other  person,  authorized  to  enforce  the  payment  of  any  tax  or  other 
debt  due  to  the  state,  or  to  any  public  corporation,  from  performing 
the  duties  required  of  him  by  law,  relative  to  the  collection  of  such 
tax  or  debt;  or  shall  by  force,  or  threats  of  force,  actually  prevent  any 
such  officer  or  person  above  described  from  performing  such  duties — he 
shall  be  fined  in  a  sum  double  to  that  of  which  he  prevented  or  at- 
tempted to  prevent  the  collection,  and  shall  be  imprisoned  not  less 
than  ten  nor  more  than  sixty  days,  in  addition  to  the  other  penalties 
which  may  be  incurred  for  any  act  of  violence  committed  in  the  course 
of  the  opposition  forbidden  by  this  article. 


TITLE  XII. 


OF  OFFENCES  WHICH  AFFECT  COMMERCE  AND  MANUFACTURES. 


CHAPTER  I. 


Of  offences  which  affect  foreign  commerce. 

Art.  269.  If  any  one  shall  export  from  this  state,  or  ship  for  the  pur- 
pose of  exportation,  any  article  of  commerce  which,  by  the  laws  now 
in  force  are,  or  by  any  laws  hereafter  to  be  passed  may  be,  required  to 
be  inspected  by  a  public  inspector,  without  having  caused  such  article 
to  be  inspected,  according  to  the  direction  of  such  laws,  he  shall  be 
fined  one  hundred  dollars. 

Art.  270.  If  any  one  shall  counterfeit  the  mark,  or  brand  or  stamp, 
directed  by  any  such  law  to  be  put  on  any  article  of  commerce,  or  on 
the  cask  or  package  containing  the  same,  he  shall  be  fined  not  less  than 
one  hundred,  nor  more  than  three  hundred  dollars,  and  be  imprisoned 
at  hard  labour  not  less  than  one  nor  more  than  three  years. 

Art.  271.  If  any  one  shall,  with  intent  to  defraud,  put  into  any  hogs- 
head, barrel,  or  other  cask,  or  in  any  bale,  box  or  package,  containing 
merchandise  usually  sold  by  weight,  any  article  whatever  of  less  value 
than  the  merchandise  with  which  such  casjj,  bale,  box  or  package  is  ap- 
parently filled;  or  shall  sell  or  barter,  or  give  in  payment,  or  expose  for 
sale,  or  ship  for  exportation,  such  cask  or  bale,  or  package  of  merchan- 
dise, with  any  such  article  of  inferior  value  concealed  therein,  with 
intent  to  DEFRAUD  ;  he  shall  pay  a  fine  not  less  than  five  hundred  nor 
more  than  one  thousand  dollars,  and  be  imprisoned  at  hard  labour  not 
less  than  one  nor  more  than  three  years. 

Art.  272.  If  any  one,  being  a  citizen  of  or  a  person  DOMESTICATED  in 
this  state,  shall,  on  the  high  seas;  or  if  any  person  whatever  sh.all,  within 
the  limits  of  this  state,  injure  or  DESTROY  any  VESSEL  of  which  such  per* 


CODE  OF  CRIMES  AND  PUNISHMENTS.  407 

son  is  the  owner,  part  owner,  or  freighter,  or  on  board  of  which  he 
shall  be  employed  as  master,  supercargo,  under  officer,  seaman,  or  in 
any  other  capacity  whatsoever,  with  intent  to  defraud  or  injure  the 
owner  of  such  vessel,  or  of  the  cargo  on  board,  or  the  underwriters  on 
such  vessel  or  cargo,  or  any  part  thereof,  or  any  other  person  interested 
in  such  vessel  or  cargo,  or  in  the  voyage,  or  the  freight  or  other  profits 
of  such  ship  or  vessel ;  he  shall  be  imprisoned  at  hard  labour  not  less 
than  six  nor  more  than  fourteen  years. 

Nothing  in  this  article  applies  to  any  act  that  would  be  piracy  by  the 
laws  of  the  United  States. 

Art.  273.  If  any  one  shall  cause  insurance  to  be  made  in  this  state  on 
any  merchandise,  represented  as  shipped,  or  about  to  be  shipped,  at 
any  place,  whether  within  this  state  or  elsewhere  ;  or  shall  cause  such 
insurance  to  be  made  at  some  place  not  within  this  state,  on  goods  said 
to  be  shipped  or  about  to  be  shipped  within  this  state,  and  shall,  with 
intent  to  defraud  the  insurer,  ship  articles  of  less  value  and  different 
from  those  insured,  or,  if  of  the  same  kind,  being  less  than  one-half  of 
the  value  of  the  articles  insured,  pretending  that  the  articles  so  shipped 
are  of  the  kind  or  of  the  quality  with  those  insured  ;  he  shall  be  fined 
not  less  than  one  hundred  nor  more  than  five  hundred  dollars,  and  shall 
be  imprisoned  not  less  than  sixty  days  nor  more  than  six  months  in 
close  custody.  , 

Art  274.  Any  person,  not  a  citizen  of  or  resident  in  this  state,  is 
guilty  of  an  attempt  to  commit  either  of  the  offences  described  in  the 
preceding  articles,  who  shall  make  any  agreement  for  the  commission 
thereof  within  this  state,  and  shall  DO  any  ACT  PREPARATORY  thereto, 
whether  the  act  be  done  in  this  state  or  elsewhere  ;  or  who  shall  make 
such  agreement  out  of  the  stale,  and  do  the  preparatory  act  within  this 
state.  A  citizen  of  or  a  resident  in  this  state  is  guilty  of  such  attempt, 
if  he  make  the  agreement  or  does  the  preparatory  act,  above  described, 
any  where. 

Art.  275.  No  person  shall  be  punished  under  either  of  the  two  last 
preceding  articles  who  shall  have  been  tried  and  acquitted,  or  punished, 
on  an  accusation  for  the  same  offence  either  in  any  court  of  the  United 
States,  of  either  of  the  United  States,  or  of  any  foreign  country  having 
cognizance  of  the  offence. 


CHAPTER  II. 


Of  offences  against  the  laws  regulating  seamen  in  the  merchant 
service,  and  the  police  of  the  port. 

Art.  276.  If  any  keeper  of  a  tavern,  or  lodging  or  boarding-house, 
shall  lodge,  entertain  or  conceal  any  seaman  who  has  deserted  from 
any  merchant  vessel,  in  any  port  of  this  state,  within  one  month  after 
such  desertion,  and  knowing  that  he  had  so  deserted,  he  shall  forfeit 
one  hundred  dollars;  and  for  a  second  offence,  in  addition  to  such  fine, 
be  imprisoned  for  thirty  days. 

Art.  277.  Any  master  of  any  ship  or  vessel  who  shall  in  or  at  any 
port  of  this  state,  ship  any  seaman,  who  has  not  produced  a  discharge 


408  CODE  OF  CRIMES  AND  PUNISHMENTS. 

in  the  form  required  by  law  from  the  master  of  the  vessel  with  whom 
he  last  sailed,  in  the  cases  in  which  such  discharge  is  by  law  required, 
shall  pay  a  fine  of  fifty  dollars. 

Art.  278.  The  police  of  the  ports  of  this  state  is  regulated  by  ordi- 
nances, passed  by  the  corporations  of  the  cities  and  places  where  such 
ports  are  situated. 


CHAPTER  III 


Of  false  weights  and  measures. 

Art.  279.  Whoever  shall  use  a  false  balance,  weight  or  measure,  in  the 
weighing  or  measuring  of  any  thing  whalever  that  shall  be  purchased, 
sold,  bartered,  or  shipped  or  delivered  for  sale  or  barter,  or  that  shall 
be  pledged  or  given  in  payment,  knowing  such  balance,  weight  or 
measure  to  be  false,  and  with  intent  to  defraud,  shall  be  fined  not  less 
than  twenty  nor  more  than  two  hundred  dollars,  and  shall  be  impri- 
soned in  close  custody  not  less  than  ten  nor  more  than  ninety  days. 

Art.  280.  The  false  weights  and  measures  intended  by  the  last  pre- 
ceding article,  are  such  as  shall  not  be  conformable  to  the  standard  of 
weights  and  measures  of  length  or  capacity  which  are  or  may  be  estab- 
lished by  law;  the  false  balance  thereby  intended  is  any  machine  what- 
ever used  for  ascertaining  the  weight  of  any  personal  property,  which 
is  so  constructed  as  to  make  the  article  weighed  appear  to  have  more 
or  less  than  the  real  weight. 

Art.  281.  Any  person  who  shall  sell  bread  or  meat  by  a  false  weight  or 
balance,  shall  incur  double  the  punishment  directed  by  the  first  article 
of  this  chapter. 

Art.  282.  The  magistrate,  granting  the  warrant  or  arrest  for  this 
offence,  shall  also  direct  the  seizure  of  the  false  weights,  balances  or 
measures  ;  and  if  the  party  be  convicted,  or  they  be  found  to  be  false, 
they  shall  be  broken,  or  otherwise  destroyed. 


CHAPTER  IV. 


Of  false  marks. 

Art.  283.  If  any  one  shall  falsely  alter  any  stamp,  brand  or  mark,  on 
any  cask,  package,  box  or  bale,  containing  merchandise  or  produce, 
made  by  a  public  officer  appointed  for  that  purpose,  in  order  to  denote 
the  quality,  weight  or  quantity  of  the  contents  thereof,  with  intent  to 
DEFRAUD,  he  shall  be  fined  not  less  than  two  hundred  nor  more  than 
five  hundred  dollars,  and  shall  be  imprisoned  at  hard  labour  not  less 
than  one  nor  more  than  three  years. 

Art  284.  Any  one  who  shall  counterfeit  any  mark,  stamp  or  brand, 
intended  to  imitate  one,  such  as  is  described  in  the  last  preceding 


CODE  OF  CRIMES  AND  PUNISHMENTS.  409 

article,  with  intent  to  defraud,  shall  incur  the  same  punishment  as  is 
directed  by  the  said  article. 

Art.  285.  Any  one  who,  with  a  fraudulent  intent,  shall  use  any  cask, 
package,  box  or  bale,  so  marked,  stamped  or  branded,  for  the  sale  of 
merchandise,  of  inferior  quality,  or  less  in  quantity  or  weight,  than  is 
denoted  by  such  mark,  stamp  or  brand,  shall  incur  one-half  the  punish- 
ment designated  by  the  last  preceding  article. 


CHAPTER  V. 


Of  offences  affecting  the  credit  of  written  instruments. 

Art.  286.  Whoever  shall  be  guilty  of  the  crime  of  forgery,  shall  be 
imprisoned  at  hard  labour  not  less  than  seven  nor  more  than  fifteen 
years,  and  shall  forfeit  his  political  and  civil  rights. 

Art.  287.  He  is  guilty  of  forgery,  who,  without  lawful  authority,  and 
with  intent  to  injure  or  defraud,  shall  either  make  a  false  INSTRUMENT 
in  writing,  purporting  to  be  the  ACT  of  another,  or  alter  an  instrument 
in  writing  then  already  in  existence,  by  whomsoever  made,  in  such  a 
manner  that  the  false  instrument  so  made  (if  the  same  were  true),  or 
the  alteration  in  the  true  instrument  (if  such  alteration  had  been  legally 
made),  would  have  created,  increased,  defeated,  discharged,  or  dimin- 
ished, any  PECUNIARY  OBLIGATION,  or  would  have  transferred  or  in  any 
manner  have  affected  any  PROPERTY  whatever. 

Art.  288.  He  is  guilty  of  making,  under  the  last  preceding  article, 
who,  knowing  the  illegal  purpose  for  which  it  is  intended,  shall  write, 
or  cause  to  be  written,  the  SIGNATURE,  or  the  whole  or  any  part  of  the 
forged  instrument.  Therefore  several  persons  may  be  each  guilty  of 
making  the  same  forged  instrument. 

Art.  289.  He  who,  under  a  void  authority,  but  which  he  shall  sup- 
pose good,  shall  make  an  instrument  in  writing  in  the  name  of  another, 
is  not  guilty  of  making  a  false  instrument,  although  it  may  be  made 
without  lawful  authority.  But  if  any  one,  without  a  legal  authority,  or 
without  an  authority  which  he  shall  have  good  reason  to  believe  to  be 
a  legal  one,  shall  make  any  writing  over  a  blank  signature,  or  on  the 
back  of  a  paper  containing  a  blank  signature  of  another  person,  such 
writing  is  a  false  instrument  in  writing,  and  if  the  other  parts  of  the 
definition  concur,  is  forgery. 

Art.  290.  The  words,  ''instrument  in  writing,"  comprehend  every 
writing  purporting  to  testify  the  will  or  intent  of  the  party  whose  act 
it  purports  to  be,  whether  of  RECORD  by  AUTHENTIC  ACT,  under  seal, 
or  PRIVATE  SIGNATURE,  or  in  whatever  form  it  may  be  couched.  It 
must  be  on  paper,  vellum,  or  parchment,  or  on  some  substance  made  to 
resemble  one  of  them,  and  it  comes  within  the  definition,  whether  the 
words  be  traced  with  a  pen,  or  stamped,  or  made  by  any  other  device 
to  resemble  a  manuscript.  An  instrument,  partly  printed  and  partly 
written,  is  a  written  instrument.  But  if  the  whole,  including  the  sig- 
nature, be  printed  with  types  or  plates,  not  made  to  resemble  manu- 
script, it  is  not  a  written  instrument,  as  that  term  is  used  in  this  chapter. 
3  B 


410  CODE  OF  CRIMES  AND  PUNISHMENTS. 

Art.  291.  A  name,  or  commercial  firm,  or  the  style  of  a  corporation, 
without  any  other  writing,  is  an  instrument,  when  made  for  the  pur- 
pose of  conveying,  creating,  or  destroying  an  interest. 

Art.  292.  In  order  to  constitute  the  making  a  false  instrument,  it  must 
purport  to  be  the  act  of  another.  Therefore  no  one  can  be  found  guilty 
of  forgery  for  making  an  instrument  signed  by  himself,  or  by  his 
authority,  in  his  true  name.  Such  act,  when  done  with  a  fraudulent 
intent,  is  a  different  offence,  hereinafter  provided  for. 

Art.  293.  The  word  "another,"  in  the  definition  of  the  crime  of  for- 
gery, includes  the  United  States,  each  of  the  states  and  territories  of 
the  union,  and  all  the  several  branches  of  the  governments  of  either 
of  them,  including  this  state  ;  all  public  or  private  bodies,  politic  and 
corporate  ;  all  partnerships  in  trade  ;  all  courts  ;  all  officers,  public  or 
private,  in  their  official  capacities  ;  and  all  persons  whatever,  whether 
real  or  fictitious,  except  the  person  making  the  forgery,  as  is  provided 
in  the  last  preceding  article. 

Art.  294.  The  word  "  whomsoever,"  in  the  said  definition,  as  applied 
to  the  person  by  whom  the  altered  instrument  was  originally  made,  is 
used  in  its  most  extensive  sense,  and  includes  not  only  all  those  men- 
tioned in  the  last  preceding  article,  but  (in  cases  where  the  instrument 
at  the  time  of  making  the  alteration  was  the  property  of  another)  it  in- 
cludes also  the  person  whose  act  it  purports  to  be. 

Art.  295.  The  word  "alter,"  in  the  said  definition,  signifies  not  only 
erasing  or  obliterating  some  words,  letters,  or  figures,  or  extracting  the 
writing  altogether,  but  the  substituting  other  words,  letters,  or  figures, 
for  those  erased,  obliterated,  or  extracted,  and  also  the  adding  any  other 
words,  letters,  or  figures,  to  the  original  instrument,  or  making  any 
change  therein  that  shall  have  any  of  the  effects  pointed  out  in  the  said 
definition. 

Art.  296.  The  words, "  if  the  same  were  true,"  in  the  said  definition, 
in  describing  the  effect  of  an  instrument  falsely  made,  apply  as  well  to 
the  person  whose  act  the  instrument  purports  to  be,  as  to  the  instrument 
itself;  therefore,  although  the  writing  be  made  in  a  fictitious  name,  it 
is  forgery,  if  the  instrument  would  have  had  any  of  the  effects  detailed 
in  the  said  definition,  in  case  it  had  been  made  by  a  real  person  of  the 
same  name,  or  description,  and  if  the  act  be  done  with  a  fraudulent  intent. 

Art.  297.  The  words,  "PECUNIARY  OBLIGATION,"  used  in  the  said 
definition  there,  and  throughout  this  system,  mean  not  only  such  as 
have  money  for  their  object,  but  every  obligation  for  the  breach  of 
which  damages  might  be  legally,  equitably,  or  justly  demanded. 

Art.  298.  The  words,  "  which  would  have  transferred,  or  in  any 
manner  have  affected  any  property  whatever,"  are  used  in  the  most  ex- 
tensive sense.  All  property,  REAL  or  PERSONAL  is  included,  as  those 
terms  are  defined  in  this  system;  and  the  transfer  or  affecting  such  pro- 
perty, includes  every  species  of  disposition,  whether  to  take  effect 
immediately,  or  in  future,  on  condition,  or  absolutely,  by  sale,  delivery, 
will,  donation,  exchange,  pledge,  mortgage,  release,  discharge,  or  any 
other  act  that  supposes  a  right  to  dispose  of,  or  change  the  condition  of 
said  property. 

Art.  299.  The  limitation,  at  the  beginning  of  the  said  definition,  is 
strictly  to  be  adhered  to  :  no  act  is  a  forgery,  unless  done  with  an  intent 
either  to  injure  or  defraud. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  411 

Art.  300.  The  injury  mentioned  in  the  last  preceding  article,  means 
injury  affecting  oneinhis  PROPERTY,  REAL,  PERSONAL  or  mixed, corporeal 
or  incorporeal,  not  an  injury  to  person  or  reputation  ;  false  writings, 
having  the  latter  tendency,  are  provided  for  in  another  part  of  this  code. 

Art.  301.  No  design  of  refunding  the  money,  or  restoring  the  proper- 
ty received,  or  of  preventing  or  compensating  any  damage  or  loss  that 
might  be  occasioned  by  any  of  the  offences  described  in  this  chapter, 
shall  avoid  the  presumption  of  fraud  created  by  the  acts  constituting 
those  offences :  but  such  design,  if  actually  executed  before  any  dis- 
covery of  the  crime,  shall  diminish  its  punishment  one-half. 

Art.  302.  If  an)r  one  shall  make  any  written  instrument  in  his  own 
name,  intended  to  create,  increase,  discharge,  defeat  or  diminish  any 
pecuniary  obligation  or  transfer,  or  affect  any  property  whatever,  and 
shall  put  a  false  date  to  the  same  with  intent  to  injure  or  defraud — he 
shall  be  fined  not  less  than  two  hundred  nor  more  than  five  hundred 
dollars,  and  shall  suffer  imprisonment  at  hard  labour  not  less  than  two 
nor  more  than  six  years. 

Art.  303.  If  any  one  shall,  with  intent  to  injure  or  DEFRAUD,  make 
any  instrument  in  his  own  name,  intended  to  create,  increase,  discharge 
or  diminish  any  pecuniary  obligation,  or  to  transfer  or  affect  any  pro- 
perty whatsoever,  and  shall  UTTER  or  PASS  it,  under  the  pretence  that  it 
is  the  act  of  another  who  bears  the  same  name — he  shall  be  fined  not 
less  than  two  hundred  nor  more  than  five  hundred  dollars,  and  con- 
fined at  hard  labour  not  less  than  three  nor  more  than  six  years. 

Art.  304.  All  the  terms  of  the  two  last  preceding  articles,  which  are 
contained  in  the  definition  of  forgery  in  the  second  article  of  this  chap- 
ter, are  to  be  understood  in  the  same  sense  in  which  they  are  used  in 
the  said  definition. 

Art.  305.  If  any  one,  having  in  his  power  a  paper  containing  the  true 
signature  of  another,  shall,  on  the  other  side  of  the  same,  make  a  pro- 
missory note  or  bill  of  exchange  in  his  own  name,  so  as  to  make  the 
said  signature  appear  as  an  indorsement  on  such  bill  or  note,  with  in- 
tent to  defraud — he  shall  suffer  the  punishment  assigned  to  such  as  are 
guilty  of  forgery. 

Art.  306.  Anyone  who  shall, with  intent  to  DEFRAUD,  UTTER  as  TRUE, 
or  PASS,  any  forged  instrument  in  writing,  or  any  other  instrument  in 
writing,  the  making  of  which  is  by  this  section  made  an  offence,  know- 
ing such  instrument  to  be  forged,  or  made  contrary  to  the  provisions  of 
this  section,  shall  suffer  the  same  punishment  that  is  assigned  to  the 
offence  of  forging  or  making  the  same. 

Art.  307.  Whoever  shall,  in  this  state,  engrave  any  plate,  or  prepare 
any  implements,  or  materials,  for  the  purpose  of  their  being  employed 
in  the  forging  any  notes  of  any  bank,  whether  this  bank  be  in  or  out 
of  this  state,  or  whether  such  bank  be  incorporated  or  not,  and  know- 
ing such  purpose,  and  with  intent  to  defraud  ;  or  shall  have  in  his 
possession  any  such  plate,  implements  or  materials  made  or  prepared 
for  such  purpose,  knowing  the  same,  and  with  intent  that  they  shall 
be  used  in  the  forging  of  any  such  notes — he  shall  be  imprisoned  at 
hard  labour  not  less  than  one  nor  more  than  three  years. 

Art.  308.  Whoever  shall  have  in  his  possession  any  forged  instru- 
ment in  writing,  or  any  instrument,  the  making  of  which  is  created  an 
offence  by  this  code,  knowing  the  same  to  be  forged,  or  made  con- 
trary to  the  provisions  of  this  code,  with  intent  fraudulently  to  utter 


412  CODE  OF  CRIMES  AND  PUNISHMENTS. 

or  to  pass  the  same — shall  be  imprisoned  at  hard  labour  not  less  than 
one  nor  more  than  three  years. 

Art.  309.  If  any  one  shall,  with  intent  to  defraud,  either  by  falsely  read- 
ing, or  falsely  interpreting  any  instrument  in  writing  ;  or  by  misre- 
presenting its  contents,  induce  any  one,  who,  either  from  ignorance  or 
infirmity,  is  incapable  of  reading  an  instrument  in  writing,  or  who,  if 
he  can  read,  does  not  understand  the  language  in  which  it  is  written, 
to  sign  such  instrument  as  his  act,  or  give  such  assent  to  it  as  would, 
if  there  had  been  no  error,  make  it  his  act ;  by  the  means  of  which 
false  reading,  false  interpretation  or  misrepresenting,  any  PECUNIARY 
OBLIGATION  purports  to  be  created,  increased,  discharged  or  diminished, 
on  the  part  of  the  person  signing  the  same,  or  any  of  his  property 
whatever,  purports  to  be  transferred  or  in  any  manner  affected — the 
person  so  offending  shall  be  imprisoned  at  hard  labour  not  less  than 
one  nor  more  than  three  years. 

Art.  310.  If  any  one,  with  intent  to  defraud,  shall  induce  another  to 
sign  any  such  instrument  as  is  described  in  the  last  preceding  article, 
by  falsely  and  without  the  knowledge  of  such  other,  substituting  it  for 
another  instrument,  materially  different  therefrom,  which  the  said  per- 
son intended  to  sign — the  person  so  offending  shall  be  imprisoned  at 
hard  labour  not  less  than  one  nor  more  than  three  years. 

Art.  311.  If  either  of  the  offences  described  in  the  two  last  preceding 
articles  shall  be  committed  by  a  public  officer,  whose  duty  it  is  to  take 
or  to  record  public  acts,  or  by  any  counsellor  or  attorney  at  law,  the 
term  of  imprisonment  shall  be  doubled,  and  he  shall  forfeit  his  political 
rights. 

Art.  312.  If  any  one  shall  falsely  personate  another,  whether  bear- 
ing the  same  name  or  not,  and  in  such  assumed  character  or  name 
shall  give  authority  to  a  notary  or  any  other  person  to  sign  such  as- 
sumed name  to  any  act,  or  to  insert  it  therein,  or  to  do  any  other  thing 
implying  a  legal  assent  to  any  act,  which,  if  it  were  the  act  of  the 
party  so  personated,  would  have  created,  or  increased,  diminished  or 
discharged,  any  pecuniary  obligation,  or  transferred,  or  in  any  wise 
affected  any  property — he  shall  be  imprisoned  at  hard  labour  not  less 
than  seven  nor  more  than  fifteen  years. 


CHAPTER  VI. 


Of  fraudulent  insolvencies. 

Art.  313.  Whoever  shall  institute  any  proceedings  in  any  court  of  jus- 
tice for  the  purpose  of  obtaining  relief,  under  the  laws  now  in  force  for 
giving  relief  in  case  of  insolvency,  for  granting  a  respite,  for  making  a 
cession  of  goods,  or  for  giving  relief  from  imprisonment  for  debt :  or 
under  any  other  laws  that  may  be  passed  for  any  of  the  purposes  above 
mentioned,  and  shall  in  the  course  of  such  proceeding,  with  intent  to 
defraud,  make  a  false  schedule  or  account  of  his  credits,  property  or 
debts,  and  exhibit  the  same  in  such  court  as  true,  or  shall  fraudulently 
conceal  or  destroy  his  books  of  accounts,  or  papers  relative  to  his  es- 
state,  in  cases  where  by  law  he  is  bound  to  produce  the  same  for  the 


CODE  OF  CRIMES  AND  PUNISHMENTS.  413 

use  or  inspection  of  his  creditors,  he  shall  suffer  imprisonment  for  not 
less  than  two  nor  more  than  four  years  at  hard  labour. 

Art.  314.  The  filing  of  the  said  schedule  or  account  with  the  clerk 
of  a  court  of  justice,  is  exhibiting  the  same,  under  the  above  article. 

Art.  315.  It  is  a  false  schedule  or  account  under  the  said  article, 

1.  If  the  party  making  the  same  shall  fraudulently  omit  to  insert  on 
the  said  schedule  any  property,  REAL  or  PERSONAL,  to  which  he  is  en- 
titled, and  which  by  law  ought  to  be  placed  on  the  said  schedule  or 
account,  of  the  value  of  ten  dollars  or  upwards. 

2.  If  he  shall  place  on  the  account  of  his  debts  any  sum  as  due  from 
him  which  he  does  not  owe,  for  the  purpose  of  defrauding  his  true  cre- 
ditors. 

But  the  mere  omission  of  any  property  on  the  schedule,  shall  not 
make  the  party  liable,  unless,  from  the  circumstances  of  the  case,  it 
appear  that  it  was  done  with  design,  and  in  order  to  defraud. 

Art.  316.  Any  one  who,  not  having  property  of  sufficient  value  to 
pay  his  debts,  shall  make  any  simulated  conveyance,  mortgage  or 
other  disposition  of  any  part  of  his  property  for  his  own  use  or  the  use 
of  his  family,  and  in  order  to  prevent  the  same  from  becoming  liable 
to  the  payment  of  his  debts,  shall  be  imprisoned  for  not  less  than  sixty 
days  nor  more  than  six  months,  and  shall  be  suspended  from  the  exer- 
cise of  his  civil  rights  of  the  first  class,  and  of  his  political  rights  for 
four  years  ;  and  the  imprisonment,  or  any  part  of  it,  may  be  in  close 
custody. 

Art.  317.  A  simulated  conveyance,  mortgage  or  disposition,  is  one 
sufficient  in  form  for  the  alienation  or  affecting  of  the  property,  but 
made  without  consideration,  or  for  an  inadequate  consideration,  and 
under  a  secret  understanding  between  the  parties  that  it  shall  operate 
for  the  benefit  of  the  person  making  the  same,  either  by  a  reconvey- 
ance afterwards  to  be  made,  or  by  a  destruction  or  redelivery  of  the 
instrument  by  which  it  was  conveyed  or  affected,  if  it  be  property 
requiring  a  written  conveyance,  or  of  the  property  itself,  or  by  hold- 
ing or  conveying  the  same  to  his  use,  or  that  of  his  wife  or  any  rela- 
tion in  the  ascending  or  descending  line. 

Art.  318.  Any  person  who  shall  receive  any  such  simulated  convey- 
ance, mortgage  or  disposition  for  the  purposes  aforesaid,  knowing  the 
said  purpose,  shall  pay  a  fine  equal  to  the  full  value  of  the  property 
so  intended  to  be  conveyed,  or  the  amount  for  which  it  was  intended 
to  be  affected,  to  be  ascertained  by  three  appraisers  appointed  by  the 
court,  and  sworn  to  make  a  true  appraisement. 

Art.  319.  The  word  "  disposition,"  in  the  three  last  articles,  means 
every  species  of  contract  by  which  property  may  be  subjected  to  any 
alien  or  onerous  condition,  whether  by  mortgage,  pledge  or  otherwise. 

Art.  320.  Any  one  who,  not  having  sufficient  property  to  pay  his 
just  debts,  shall  voluntarily  suffer  a  judgment  to  be  entered  in  favour 
of  any  one,  that  shall  bind  or  encumber  any  real  property,  or  on  which 
any  personal  property  shall  be  seized,  for  a  sum  not  due,  or  without 
consideration,  or  for  an  inadequate  consideration,  shall  convey,  or 
mortgage  or  affect  by  any  onerous  condition  any  of  his  property,  or 
for  a  larger  sum  than  is  really  due,  with  intent  to  defraud  his  credi- 
tors, or  some  one  or  more  of  them,  shall  be  imprisoned  not  less  than 
sixty  days  nor  more  than  six  months,  shall  be  suspended  from  the  ex- 
ercise of  his  political  and  of  his  civil  rights  of  the  first  class  for  four 


414  CODE  OF  CRIMES  AND  PUNISHMENTS. 

years,  and  the  imprisonment  may  in  the  whole  or  in  part  be  in  close 
custody. 

Art.  321.  The  person  who  shall,  collusively  with  such  debtor,  re- 
cover such  judgment,  shall  be  fined  in  a  sum  equal  to  the  amount  of 
such  judgment,  and  he  who  knowing  the  intent  of  such  conveyance, 
mortgage  or  onerous  disposition,  shall  receive  the  same,  shall  be  fined 
in  a  sum  equal  to  the  value  of  the  property  if  conveyed,  or  the  amount 
of  the  incumbrance  if  only  mortgaged  or  burthened. 

Art.  322.  All  the  dispositions  of  the  six  last  preceding  articles  take 
effect  only  in  cases  where  the  inability  to  pay  debts  appears  by  a 
forced  or  voluntary  cession  of  property,  or  petition  for  a  respite,  or  a 
discussion  of  all  the  property  of  the  debtor. 


TITLE  XIII. 


OF  OFFENCES  AFFECTING  PUBLIC  PROPERTY. 

Art.  323.  All  the  provisions  for  the  protection  of  the  property  of  in- 
dividuals against  fraudulent  or  malicious  injury,  apply  to  the  property 
of  the  state,  and  of  public  and  private  corporations. 


TITLE  XIV. 


OF  OFFENCES  AFFECTING  THE  PUBLIC  ROADS,  EMBANKMENTS,  BRIDGES,  NAVIGA- 
BLE WATERS,  AND  OTHER  PROPERTY  HELD  BY  THE  SOVEREIGN  POWER  FOR 
THE  COMMON  USE. 


GENERAL  PROVISION. 

Art.  324.  The  ordinances  which  the  juries  of  police  in  the  different 
parishes  and  the  public  corporations  in  the  cities  and  towns  are  au- 
thorized to  make,  contain  the  regulations  of  police  for  the  making  and 
enlarging  the  embankments  or  levees,  roads,  bridges,  streets,  and  public 
squares,  and  the  penalties  which  are  incurred  by  disobeying  them. 


CHAPTER  I. 


Of  the  levees  and  embankments  of  rivers. 

Art.  325.  If  any  one  shall  maliciously  break  down  any  levee  or  em- 
bankment made  to  confine  the  waters  of  any  river  or  bayou,  he  shall  be 


CODE  OF  CRIMES  AND  PUNISHMENTS.  415 

fined  not  less  than  fifty,  nor  more  than  five  hundred  dollars,  or  impri- 
soned not  less  than  one  month  nor  more  than  one  year,  or  both. 

Art.  326.  Every  breach  in  such  levee  or  embankment  shall  be  deem- 
ed to  be  maliciously  made,  if  it  shall  be  attended  with  any  injury  to  the 
property  of  another,  and  if  it  be  done  in  a  manner  or  for  a  purpose  for- 
bidden by  the  ordinances  of  police. 


CHAPTER  II. 


•    Of  the  roads,  bridges,  and  navigable  waters. 

Art.  327.  Whoever  shall  make  any  embankment,  wharf,  or  other  con- 
struction in  the  bed  of  any  navigable  river,  bayou,  or  lake,  that  shall 
impede  the  navigation  thereof,  or  that  shall  not  be  allowed  by  the  legal 
ordinances  of  police,  of  the  police  juries  in  the  parish  in  which  it  is 
made,  shall  be  fined  not  less  than  fifty  nor  more  than  five  hundred 
dollars. 

Art.  328.  Whoever  shall  erect  any  fence  or  building,  or  dig  any  ditch, 
or  throw  up  any  mound  of  earth  in  any  street  or  public  road  or  square, 
or  do  any  other  act  that  shall  obstruct  the  public  use  thereof,  or  shall 
unlawfully  destroy  any  bridge  erected  thereon,  shall  be  fined  not  less 
than  five,  nor  more  than  one  hundred  dollars. 

Art.  329.  Whoever  shall  erect  on  the  space  set  apart  by  the  police 
regulations  for  a  tow  path,  along  any  navigable  waters,  or  on  the  levee 
or  embankment  of  the  same,  or  on  its  banks,  any  building,  enclosure, 
or  other  construction,  or  any  other  works  whatever,  that  shall  prevent 
the  public  use  thereof,  or  render  it  less  convenient,  unless  thereunto 
authorized  in  the  manner  directed  by  law,  or  by  the  ordinances  of 
police,  shall  be  fined  not  less  than  fifty  nor  more  than  five  hundred 
dollars. 

Art.  330.  All  persons  guilty  of  any  of  the  offences  designated  in  this 
chapter  shall  also  be  subject  to  such  regulations  as  are  or  shall  be  lawfully 
made  by  the  police  ordinances,  for  the  repair  of  any  damages  that  may 
be  occasioned  by  such  offences,  and  the  removal  of  the  works  that  are 
forbidden  by  this  chapter. 


416  CODE  OF  CRIMES  AND  PUNISHMENTS. 


TITLE  XV. 


OF  OFFENCES  INJURIOUS  TO  PUBLIC  HEALTH. 


CHAPTER  I. 

Of  acts  injurious  to  public  health  or  safety. 

Art.  331.  No  one  shall  carry  on  a  manufactory  of  gunpowder,  or  shall 
keep  more  than  ten  pounds  of  gunpowder  at  one  time,  in  any  building 
within  three  hundred  yards  of  any  dwelling-house,  or  of  any  public 
road,  or  of  any  land  belonging  to  any  other  person  than  the  proprietor 
of  the  land  on  which  such  manufactory  or  building  is  erected,  unless 
the  owner  of  such  adjacent  land  shall  permit  such  manufactory  to  be 
carried  on,  and  will  agree  not  to  build  any  dwelling-house  within  three 
hundred  yards  of  such  manufactory  or  building  in  which  such  gunpow- 
der is  stored.  Any  one  offending  against  the  provisions  of  this  article, 
shall  be  fined  five  hundred  dollars  ;  and  on  conviction,  may  be  enjoin- 
ed by  the  court  from  carrying  on  such  business. 

Art.  332.  Whoever  shall  carry  on  any  trade,  or  business,  or  do  any 
act  that  is  injurious  to  the  health  of  those  who  reside  in  the  vicinity,  or 
shall  suffer  any  substance  which  shall  have  that  effect,  to  remain  on  any 
real  property  possessed  by  him,  shall  be  fined  not  exceeding  three 
hundred  dollars,  and  the  party  may  be  enjoined  proceeding  in  the 
operations  that  are  offensive  to  health,  and  ordered  to  remove  such  sub- 
stances. 

Art.  333.  Whoever  shall  wilfully  ADULTERATE  for  the  purpose  of 
sale,  or  shall  sell,  knowing  it  to  be  adulterated,  any  wine,  beer,  spirits 
of  any  kind,  or  other  liquor  intended  for  drinking,  with  any  substance 
that  renders  them  injurious  to  the  health  of  those  who  drink  them, 
shall  be  fined  not  exceeding  three  hundred  dollars,  and  the  liquor  so 
adulterated  shall  be  forfeited  and  destroyed. 

Art.  334.  If  any  person  shall  fraudulently  adulterate  for  sale,  or  shall 
sell,  knowing  them  to  be  so  adulterated,  any  drugs  or  medicines  in 
such  a  manner  as  to  lessen  the  efficacy  or  change  the  operation  of  such 
drugs  or  medicines,  or  to  make  them  injurious  to  health,  he  shall  be 
fined  not  less  than  one  hundred  nor  more  than  five  hundred  dollars, 
and  imprisoned  not  less  than  ten  days  nor  more  than  six  months,  and 
the  imprisonment  may  be  in  close  custody. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  417 


TITLE  XVI. 


OF  OFFENCES  AGAINST  MORALS. 


CHAPTER  I. 


Of  disorderly  houses. 

Art.  335.  If  any  one  shall  keep  a  disorderly  house,  he  shall  be  punished 
by  fine  not  exceeding  two  hundred  dollars,  or  by  imprisonment  in  close 
custody  not  more  than  sixty  days. 

Art.  336.  The  houses  that  are  punishable  as  disorderly,  are: 

1.  Houses  kept  for  the  purpose  of  public  prostitution,  and  DISTURB- 
ANCE. 

2.  Houses  kept  as  taverns,  or  for  the  sale  of  spirituous  liquors  by  retail, 
without  license. 

3.  Licensed  houses  of  the  description  last  above  mentioned,  in  which 
any  act  forbidden  by  the  license,  is  permitted  to  be  done. 

4.  Houses  in  which  gambling  is  permitted  in  a  manner  contrary  to 
some  express  law. 

Art.  337.  Any  part  of  a  building,  appropriated  to  either  of  the  pur- 
poses above  enumerated,  is  a  house  within  the  meaning  of  this  chapter. 

Art.  338.  There  must  be  more  than  one  act  of  the  kinds  that  are  above 
forbidden,  done  in  a  house,  to  constitute  it  a  disorderly  house. 

Art.  339.  The  wife  may  be  punished  with  the  husband,  for  keeping 
a  disorderly  house  of  the  first  description ;  but  no  house  shall  be  com- 
prehended in  that  .term  unless  such  acts  are  habitually  permitted  there- 
in, as  come  within  the  description  of  those  public  exhibitions  of  person, 
which  are  made  punishable  by  the  next  chapter,  or  unless  acts  are 
habitually  done  therein,  which,  if  done  in  a  public  place,  would  amount 
to  the  offence  of  PUBLIC  DISTURBANCE. 


CHAPTER  II. 


Of  offences  against  decency. 

Art.  340.   If  any  one  shall  make,  publish  or  print  any  obscene  print, 
picture  or  written  or  printed  composition,  manifestly  designed  to  cor- 
rupt the  morals  of  youth,  or  shall  designedly  make  any  indecent  or 
obscene  exhibitions  of  their  persons  or  of  those  of  another,  in  public, 
3C 


418  CODE  OF  CRIMES  AND  PUNISHMENTS. 

by  which  pudicity  is  offended  ;  he  shall  be  imprisoned  not  more  than 
six  months,  or  fined  not  more  than  one  thousand  dollars,  or  both  ;  and 
the  imprisonment,  or  part  of  it,  shall  be  in  close  custody. 

Art.  341.  If  any  one  shall,  with  design  to  insult,  in  the  hearing  of 
any  person  of  the  female  sex,  utter  any  obscene  or  lascivious  express- 
ions, such  as  must  shock  the  natural  pudicity  of  that  sex ;  he  shall  be 
imprisoned  in  close  custody  not  less  than  five  nor  more  than  thirty 
days,  or  fined  not  exceeding  fifty  dollars,  or  both. 

Art.  342.  Whoever  shall  be  guilty  of  SEDUCING  a  woman  of  good  re- 
putation under  a  promise  of  marriage,  and  shall  violate  his  promise, 
shall  be  fined  not  less  than  one  hundred  nor  more  than  one  thousand 
dollars,  or  shall  be  imprisoned  in  close  custody  not  less  than  one  nor 
more  than  six  months. 

Art.  343.  Whoever  shall,  for  hire,  procure  the  means  of  illicit  con- 
nexion between  persons  of  different  sexes,  or  shall  solicit  or  procure  a 
woman  to  prostitute  her  person  to  another,  shall  be  imprisoned  not  ex- 
ceeding three  months  in  close  custody. 


CHAPTER  III. 


Of  adultery. 

Art.  344.  Adultery  is  a  term  of  which  the  meaning,  as  affixed  by  this 
code,  is  precisely  that  which  it  bears  in  common  parlance;  it  therefore 
needs  no  other  description.  When  committed  by  the  wife,  it  is  An  of- 
fence for  which  she  forfeits  all  the  matrimonial  gains,  to  which  she 
would  otherwise  be  entitled;  which  immediately,  on  the  conviction, 
are  vested  in  those  who  would  have  been  her  legal  heirs  had  she  died 
on  the  day  of  conviction  ;  she  also  forfeits  her  civil  rights  of  the  first 
class. 

Art.  345.  The  person  with  whom  a  woman  commits  adultery  shall 
suffer  fine  not  less  than  one  hundred  and  not  exceeding  two  thousand 
dollars,  or  imprisonment  not  more  than  six  months,  or  both. 

Art.  346.  The  husband  who  commits  adultery,  by  keeping  a  concu- 
bine in  the  house  with  his  wife,  or  by  forcing  her  by  ill-treatment 
to  abandon  his  house,  and  keeping  his  concubine  in  it,  shall  be  fined 
not  less  than  one  hundred  nor  more  than  two  thousand  dollars ; 
and  his  civil  right  of  being  tutor  or  curator  to  any  minor,  including 
his  own  children,  is  suspended  from  the  time  of  conviction,  for  one 
year,  and  as  much  longer  as  he  shall  live  with  his  concubine  in  the  same 
house. 

Art.  347.  No  prosecution  for  adultery  shall  be  commenced,  but  on 
the  complaint  of  the  husband  or  wife;  and  the  prosecution  shall  cease  if 
the  parties  are  reconciled  before  judgment. 

Art.  348.  A  sentence  of  separation,  in  person  and  estate,  for  cause  of 
adultery,  must  always  be  preceded  by  a  conviction  for  that  offence. 

Art.  349.  The  indictment  or  information  for  adultery  against  the  wife 
must  be  a  joint  one,  against  the  woman  and  the  man  with  whom  the 
adultery  is  said  to  have  been  committed,  if  he  be  alive,  and  the  one 


CODE  OF  CRIMES  AND  PUNISHMENTS.  419 

cannot  be  found  guilty  without  the  other — subject  to  the  modifications 
contained  in  the  Code  of  Procedure. 


CHAPTER  IV. 


Of  the  violation  of  places  of  interment. 

Art.  350.  Whoever  shall  open  a  grave,  or  other  place  of  interment, 
for  the  purpose  of  stealing  the  coffin,  or  any  part  thereof,  or  the  vest- 
ments, or  other  articles,  interred  with  any  dead  body  which  is  deposited 
in  such  place  of  interment ;  shall  be  imprisoned  at  hard  labour  not  less 
than  one  nor  more  than  three  years. 

Art.  351.  Whoever,  for  the  purpose  of  sale,  exposure  or  dissection, 
shall  remove  any  dead  body  from  the  grave,  or  other  place  of  inter- 
ment— shall  be  fined  not  less  than  fifty  nor  more  than  three  hundred 
dollars,  or  imprisoned  not  less  than  thirty  nor  more  than  ninety  days. 

Art.  352.  The  last  preceding  article  does  not  extend  to  cases  where  a 
dead  body  shall  be  disinterred  in  the  manner  directed  by  the  Code  of 
Procedure,  for  the  purpose  of  examination  into  the  means  by  which  the 
deceased  lost  his  life. 

Art.  353.  Whoever  shall  purchase,  or  sell,  or  otherwise  than  is  herein- 
after provided,  shall  dissect  any  dead  body  before  its  interment — shall 
be  fined  not  less  than  fifty  nor  more  than  two  hundred  dollars,  or  shall 
be  imprisoned  not  more  than  ninety  days. 

Art.  354.  The  last  preceding  article  does  not  extend  to  cases  where  a 
dissection  is  ordered  in  case  of  suspicion  of  murder,  according  to  the 
provisions  of  the  Code  of  Procedure: 

To  cases  where  the  deceased  has  himself  directed  it. 

To  cases  where  it  is  performed  by  the  permission  of  the  next  of  kin 
to  the  deceased. 

Or,  to  cases  where  dissection  is  ordered  by  law  to  be  perfomed  upon 
the  bodies  of  those  who  die  in  prison,  under  conviction  of  certain 
offences. 

Art.  355.  The  dead  body,  intended  by  this  chapter,  is  that  of  a  hu- 
man being.  , 


420  CODE  OF  CRIMES  AND  PUNISHMENTS. 


TITLE  XVII. 


OF  OFFENCES  WHICH   AFFECT  PERSONS   IN  THE   EXERCISE   OF  THEIR  RELIGION. 

Art.  356.  If  any  one  shall  MALICIOUSLY  prevent  any  person  from 
doing  any  lawful  act  that  is  required  by  the  religion  he  professes  ;  or 
shall,  by  force  or  threats  of  force,  or  of  injury  to  person  or  property, 
oblige,  or  endeavour  to  oblige,  anyone  to  follow  any  forms  of  worship, 
or  to  profess  any  mode  of  religious  belief,  or  to  perform  any  religious 
rites  or  ceremonies  ;  he  shall  be  fined  not  less  than  twenty  nor  more 
than  two  hundred  dollars,  or  imprisoned  in  close  custody  not  exceeding 
forty  days,  or  both. 

Art.  357.  If  the  offence,  described  in  the  last  preceding  article,  shall 
be  committed  by  a  judicial  or  executive  officer,  under  COLOUR  of  author- 
ity derived  from  his  office,  or  by  any  priest  or  minister,  or  preacher  of 
any  religious  congregation  or  sect,  the  punishment  shall  be  doubled. 

Art.  358.  Nothing  in  this  chapter  contained  shall  prevent  a  parent  or 
tutor,  or  curator,  or  master,  from  obliging  his  child,  or  ward,  or  ap- 
prentice, being  a  minor,  by  all  such  means  as  are  permitted  by  law  for 
the  enforcement  of  his  other  legal  commands,  to  conform  to  the  forms 
of  worship  in  which  such  minor  was  educated. 

Art.  359.  Nor  do  the  provisions  of  this  chapter  prevent  the  enforce- 
ment of  the  rules,  canons,  or  ordinances,  made  by  different  churches, 
or  religious  congregations  or  societies,  for  the  preservation  of  discipline 
or  order  among  their  members  :  provided,  that  such  enforcement  shall 
not  be  made  by  the  infringement  of  any  civil  or  political  right,  or  by 
any  act  declared  by  this  code  to  be  an  offence. 

Art.  360.  If  any  act  which  by  this  code  is  made  an  offence,  shall  be 
committed  in  a  place  of  public  worship  during  the  celebration  thereof, 
so  as  to  disturb  any  religious  society  in  the  legal  performance  of  their 
worship,  or  their  religious  rites  and  ceremonies. .  The  punishment  for 
such  offence  shall  be  doubled  and  shall  not  in  any  case  be  less  than  a 
fine  of  fifty  dollars  or  imprisonment  in  close  custody  for  fifteen  days. 

Art.  361.  If  such  disturbance  be  intentionally  made  by  any  act  which 
is  not  otherwise  created  an  offence,  the  punishment  shall  be  fine  not 
exceeding  fifty  dollars,  or  imprisonment  not  exceeding  thirty  days. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  421 


TITLE  XVIII. 


OF  OFFENCES  AFFECTING  REPUTATION. 


CHAPTER  I. 


Of  defamation. 

Art.  362.  Whoever  shall  defame  another,  shall  be  punished  by  fine 
and  imprisonment,  or  both. 

If  the  defamation  impute  a  CRIME,  it  shall  be  punished  by  fine  not 
exceeding  three  thousand  dollars,  or  by  imprisonment  not  more  than 
twelve  months,  or  by  both  ;  and  the  imprisonment  may,  for  the  whole 
or  a,  part  of  the  time,  be  in  close  custody. 

If  the  defamation  do  not  impute  a  CRIME,  the  punishment  shall  be 
lessened  one-fourth. 

If  the  defamation  be  by  libel,  imprisonment  in  close  custody  shall 
always  form  a  part  of  the  punishment. 

Art.  363.  Defamation  is  an  injury  offered  to  the  reputation  of  another, 
by  an  allegation  which  is  either  untrue,  or,  if  true,  is  not  made  with  a 
justifiable  intent. 

Art.  364.  Defamation  may  be  made  verbally  or  by  signs,  which  is 
called  slander  ;  or  by  writing  or  painting,  which  is  called  libel. 

Art.  365.  This  offence  consists  in  the  injury  offered  to  reputation,  not 
in  any  probable  breach  of  the  peace  or  other  consequence  that  may 
result  from  it. 

Art.  366.  There  must  be  some  injury  offered  in  order  to  constitute  the 
offence  ;  therefore,  the  words  used,  or  the  figures  represented,  must 
convey  the  idea,  either — 

1.  That  the  person,  to  whom  they  refer,  has  been  guilty  of  some 
crime. 

2.  That  he  has  done  some  act,  or  been  guilty  of  some  omission, 
which,  although  not  a  crime,  is  of  a  nature  to  make  people  in  general 
avoid  social  intercourse  with  him,  or  lessen  their  confidence  in  his  in- 
tegrity. 

3.  That  he  has  some  moral  vice,  or  physical  or  mental  defect  or  dis- 
ease, that  would  cause  his  society  to  be  generally  avoided  :  or 

4.  That  his  general  character  is  such  as  to  produce  either  of  the  effects 
mentioned  in  this  article. 

Art.  367.  It  is  also  an  injury,  coming  within  the  definition,  if  the 
natural  tendency  of  the  words  or  representations  used  is  to  bring  upon 
the  person,  to  whom  they  refer,  the  hatred,  ridicule,  or  contempt  of 
the  public  ;  or  to  deprive  him  of  the  benefits  of  social  intercourse. 

Art.  368.  To  make  false  representations,  importing  that  the  party  re- 
ferred to  wants  the  necessary  talents,  or  is  otherwise  incompetent  to 


422  CODE  OF  CRIMES  AND  PUNISHMENTS. 

perform  or  conduct  the  office,  business,  profession,  or  trade,  in  which 
he  is  engaged  ;  or  is  dishonest  in  his  conduct  therein  j  is  also  an  injury 
within  this  part  of  the  definition. 

Art.  369.  But  it  is  not  an  offence  to  make  true  statements  of  fact,  or 
express  any  opinion,  whether  such  opinion  be  correctly  formed  or  not, 
as  to  the  qualifications  of  any  person  for  any  public  office,  with  a  bona 
fide  intent  to  give  information  to  those  who  have  the  power  of  making 
the  appointment  or  election  to  such  office. 

Art.  370.  Nor  is  it  an  offence  to  make  true  statements  of  fact,  or  ex- 
press the  opinion  which  he  who  gives  it  entertains  relative  to  the  integri- 
ty or  other  qualifications  to  perform  the  duties  of  any  station,  profession, 
or  trade,  when  it  is  done  by  way  of  advice  to  those  who  have  asked  it, 
or  to  those  whom  it  was  a  duty,  arising  either  from  legal  or  social  con- 
nexion, or  from  motives  of  humanity,  to  give  such  advice. 

Art.  371.  Nor  shall  it  be  deemed  an  offence,  to  make  or  publish  any 
criticism  or  examination  of  any  work  of  literature,  science,  or  art ;  or 
to  express  any  opinion  on  the  qualifications,  merits,  or  competency  of  the 
author  of  such  work,  in  relation  thereto  ;  although  such  criticism,  exam- 
ination, or  opini6n,  shall  be  ill-founded  and  prove  injurious  to  the  party 
to  whom  it  refers  :  provided,  such  criticism  or  expression  of  opinion 
be  not  intended  to  cover  a  malicious  design  to  injure  the  party  to  whom 
it  refers. 

Art.  372.  If  the  injury  spoken  of  in  the  definition  be  OFFERED,  it  is 
sufficient  to  constitute  the  offence  ;  by  which  is  not  meant,  that  the  in- 
jury must  be  actually  suffered  ;  but  that  the  words  or  representations 
are  such  as,  in  the  ordinary  course  of  affairs,  tend  to  cause  such  injury, 
according  to  the  definition  and  explanation  of  that  word  in  this  chapter. 
Art.  373.  All  those  who  make,  publish,  or  circulate  a  libel,  are  sever- 
ally guilty  of  the  offence  of  defamation. 

Art.  374.  He  is  the  maker  of  a  libel,  who  originally  contrived,  and 
either  gave  it  form  himself,  by  writing,  printing,  engraving,  painting, 
or  any  other  of  the  modes  which  may  constitute  a  libel,  or  caused  it 
to  be  so  done  by  others. 

Art.  375.  He  is  the  PUBLISHER,  who  executes  the  mechanical  labour 
of  writing  it  when  dictated  by  the  maker,  or  who  paints  or  engraves, 
or  in  any  other  manner  gives  it  form  under  his  direction,  who  copies, 
or  prints  it. 

Art.  376.  He  circulates  who  sells  a  libel,  or  who,  knowing  the  con- 
tents, gives  or  distributes,  or  reads,  or  exhibits  it  to  others. 

Art.  377.  If  the  libel  be  in  a  printed  form,  and  is  printed  or  sold  in 
an  office,  or  shop,  where  books,  or  other  printed  works  are  usually 
printed  or  sold,  the  person  on  whose  account  the  business  of  such  office 
or  shop  is  carried  on,  is  presumed  to  be  the  person  who  published  or 
circulated  it,  until  he  remove  that  presumption  by  contrary  proof. 

Art.  378.  In  like  manner,  if  the  libel  be  an  engraving,  or  painting, 
and  is  made  and  sold  in  an  office  or  shop,  in  which  paintings  or  engrav- 
ings are  usually  made  or  sold,  the  person  on  whose  account  the  business 
of  such  office  or  shop  is  carried  on,  is  presumed  to  be  the  person  who 
published  or  circulated  it. 

Art.  379.  No  one  shall  be  convicted  merely  on  evidence  of  his  hav- 
ing made  a  manuscript  copy  of  a  libel,  or  of  having  performed  the  me- 
chanical labour  of  printing  it,  who  can  prove  that  he  made  such  printed 
or  written  copy  without  any  intent  to  injure  the  person  to  whom  it 


CODE  OF  CRIMES  AND  PUNISHMENTS.  423 

refers  ;  but  he,  for  whose  account,  or  by  whose  order  it  is  printed, 
shall  be  presumed  to  have  known  the  intent  of  publication,  and  shall  be 
liable  for  the  offence. 

Art.  380.  He  is  not  guilty  of  the  offence,  who  only  lends  or  gives  a 
book  or  paper  containing  a  libel,  or  reads  it  to  another  after  it  is  al- 
ready in  general  circulation,  unless  some  circumstances  are  proved  to 
show  that  it  was  done  with  design  to  injure. 

Art.  381.  The  injury  to  constitute  the  offence,  must  be  offered  to  the 
REPUTATION.  Words,  or  representations  which  injure  the  party  in  his 
title  to  property  only,  form  a  different  offence,  provided  for  under  its 
proper  head. 

Art.  382.  The  words  "of  another,"  in  the  definition  of  this  offence, 
comprehends  every  person  in  possession  of  his  CIVIL  RIGHTS,  as  also 
aliens,  whether  resident  within  the  state  or  not. 

Art.  383.  The  dead  are  also  included  in  this  term,  but  subject  to  the 
following  formality  and  proviso  : 

1.  No  prosecution  shall  be  commenced,  but  on  the  complaint  of  a 
family  meeting,  called  at  the  request  of  a  descendant,  collateral  rela- 
tion, or  friend  of  the  deceased,  in  the  manner  directed  by  the  Code  of 
Civil  Procedure. 

2.  No  prosecution  can  be  supported,  for  the  statement  of  any  his- 
torical facts,  or  delineations  of  character  in  any  literary  work,  whether 
the  party  to  whom  they  refer  be  dead  or  alive,  provided  such  state- 
ments be  made  in  the  fair  prosecution  of  historical  or  other  literary 
disquisition,  and  not  for  the  purpose  of  defamation. 

Art.  384.  The  word  "allegation,"  as  used  in  the  definition,  compre- 
hends not  only  the  direct  assertion  of  a  fact,  but  every  mode  of  speech 
or  device,  by  which  the  hearers  or  spectators  may  understand  what  is 
intended. 

Art.  385.  The  words  or  representations  by  which  the  allegation  is 
expressed,  are  to  be  understood  in  the  sense  in  which  they  were 
intended  by  the  person  using  them  :  intent  and  signification  are  mat- 
ters of  fact  to  be  determined  from  a  consideration  of  all  the  evidence 
in  the  case. 

Art.  386.  An  important  part  of  the  definition  is  that  which  deter- 
mines that  the  uttering  of  truth  may  sometimes  constitute  defamation. 
The  truth  may  be  expressed  in  all  cases  in  which  it  is  not  forbidden 
by  law,  but  the  allegation  of  falsehood  is  not  always  an  OFFENCE  ;  it  is 
sometimes  made  the  cause  of  private  suit,  sometimes  left  to  the  sanc- 
tion of  the  moral  sense,  or  of  public  opinion.  For  the  development  of 
this  branch  of  the  definition,  the  following  rules  are  established  : 

1.  True  statements  of  the  OFFICIAL  conduct  of  members  of  the  gene- 
ral assembly,  or  of  public  officers,  and  of  the  proceedings  of  all  legisla- 
tive bodies,  PUBLIC  CORPORATIONS,  and  courts  of  justice,  may  be  le- 
gally made. 

2.  Observations  on  the  tendency  of  the  official  acts  of  members  of 
the  legislature,  and  of  public  officers,  and  on  their  motives  in  perform- 
ing them,  are  permitted,  even  if  the  author  should  mistake  such  ten- 
dency or  motives  ;  but  a  false  allegation  or  suggestion  of  such  motives, 
as  would,  connected  with  the  act,  constitute  a  crime,  is  defamation. 

3.  Allegations,  having  no  natural  connexion  with  the  case,  provided 
for  by  the  two  last  preceding  articles,  which  would  amount  to  defama- 
tion, if  made  or  exhibited  alone,  are  offences,  although  they  may  be 


424  CODE  OF  CRIMES  AND  PUNISHMENTS. 

contained  in  publications  which  treat  or  propose  to  treat  of  the  conduct 
of  public  measures  and  public  officers. 

Art.  3S7.  Allegations,  in  writing,  made  with  respect  to  all  other  than 
the  official  acts  above  provided  for,  which  would,  if  they  were  false, 
be  defamation,  shall,  although  true,  constitute  that  offence,  if  they  are 
made  from  motives  of  revenge,  hatred,  envy,  or  ill-will  of  any  other 
kind,  entertained  by  the  party  making  them,  or  to  gratify  either  of 
those  passions  in  any  other  ;  and  they  shall  be  deemed  to  have  been 
made  from  such  motive  in  all  cases  in  which  the  defendant  cannot 
show  that  he  was  actuated  by  some  motive  of  public  good,  or  private 
duty,  in  making  the  allegation. 

5.  No  true  allegations  but  such  as  are  described  in  the  last  prece- 
ding rule,  and  no  false  allegations  but  such  as  are  declared  to  be  offences 
by  this  code,  are  declared  punishable  by  law. 

6.  No  prosecution  can  be  maintained  for  defamation,  on  account  of 
any  thing  said  or  written,  either  as  judge,  attorney,  counsel,  party  or 
witness,  in  a  court  of  justice  in  the  course  of  a  legal  proceeding,  pro- 
vided that  what  is  said  or  written  be  relevant  to  the  matter  before 
such  court,  and  is  not  introduced   for  the   sole  purpose  of  injuring 
the  party  to  whom  it  refers. 

7.  Inquiries  and  suggestions,  made  even  out  of  court,  if  done  with 
a  bona  fide  view  of  investigating  a  fact,  necessary  for  the  party's  inte- 
rest in  a  civil,  or  defence  in  a  criminal  prosecution,  and  not  from  ma- 
lice towards  the  party  to  whom  they  refer,  are  not  an  offence,  although 
they  may  injure  such  party. 

8.  Nothing  said  by  a  party  to  a  civil  suit  or  criminal  prosecution,  in 
confidence  to  his  attorney,  solicitor  or  counsel,  relative  to  such  suit  or 
prosecution,  while  it  is  pending,  or  with  a  view  to  its  commencement 
or  defence,  is  an  offence  under  this  chapter. 

9.  The  constitutions  of  the  United  States  and  of  this  state  severally, 
protect  members  of  congress  and  of  the  general  assembly  from  prose- 
cutions for  any  thing  said  in  either  of  those  bodies.     The  same  rule  is 
to  be  observed  with  respect  to  members  of  the  legislatures  of  the  differ- 
ent states,  and  those  who  may  publish  their  proceedings. 

Art.  388.  The  word  "  verbally,"  used  in  the  definition  of  slander, 
means  the  utterance  of  words  by  the  voice  ;  and  the  words  "  by  signs," 
comprehend  every  motion  of  the  fingers  or  other  gesture,  that  is  un- 
derstood by  the  party  using  it,  and  by  them  to  whom  it  is  addressed, 
to  signify  words,  or  otherwise  to  communicate  ideas. 

Art.  389.  It  is  slander  to  repeat  the  contents  of  any  libel,  or  the 
words  of  any  slander,  unless  the  defendant  show  that  he  was  not  actu- 
ated in  doing  so  by  any  desire  to  injure  the  person  defamed. 

Art.  390.  The  word  "writing,"  in  the  definition  of  libel,  compre- 
hends not  only  manuscript,  but  printing,  engraving,  etching  or  any 
other  means  now  known,  or  which  may  hereafter  be  discovered  or  in- 
vented, to  make  words  visible.  The  word  "painting,"  in  the  same 
definition,  includes  not  only  the  art  usually  so  called,  but  drawing,  en- 
graving or  representing  figures  in  any  other  way.  It  also  comprehends 
hieroglyphics,  or  the  representation  of  words  by  objects  which  they 
signify. 

Art.  391.  Offences  enumerated  in  this  chapter  can  only  be  punished 
by  indictment,  and  never  but  on  complaint  of  the  party  injured,  or  his 
legal  representative,  if  he  be  alive  ;  or  if  the  defamation  be  against  the 


CODE  OF  CRIMES  AND  PUNISHMENTS.  425 

reputation  of  the  person  deceased,  then  in  the  manner  hereinbefore 
provided. 

Art.  392.  In  all  the  offences  created  by  this  chapter,  the  jury  decide  not 
only  all  the  facts  that  are  in  question,  but  the  intent  when  it  is  mate- 
rial, subject  to  the  general  powers  given  to  the  court  in  the  Code  of 
Procedure. 

Art.  393.  Nothing  in  this  chapter  contained  shall  be  so  construed  as 
to  prevent  or  punish  the  free  discussion  of  the  proceedings  of  the  legis- 
lature, or  any  other  branch  of  the  government,  which  is  secured  by  the 
constitution  ;  and  nothing  shall  be  considered  as  an  abuse  of  the  liberty, 
to  speak,  write  and  print  on  any  subject  which  is  referred  to  in  the 
constitution,  but  such  acts  of  that  nature  as  are  specially  constituted 
offences  by  this  code. 

Art.  394.  There  is  no  such  offence  known  to  our  law  as  defamation 
of  the  government,  or  either  of  its  branches,  either  under  the  name  of 
libel,  slander,  seditious  writing  or  other  appellation.  When  such  alle- 
gations amount  to  defamation  of  the  representatives  of  the  people,  or 
public  officers,  they  are  provided  for  by  the  preceding  articles.  When 
they  amount  to  the  crime  of  complicity  in  sedition,  or  in  opposition 
to  law,  they  are  made  punishable  by  the  general  provisions  respecting 
accomplices. 

Art.  395.  There  is  no  such  offence  as  defamation  of  a  body  corpo- 
rate or  politic,  or  of  public  justice,  or  religion,  or  good  morals,  either 
by  libel  or  otherwise. 

Art.  396.  In  all  cases  of  prosecution  under  this  chapter,  the  court 
may,  at  its  discretion,  make  it  a  condition  that  the  whole  or  any  part 
of  the  punishment  which  is  awarded,  may  be  remitted  on  the  offender's 
making  apology  and  amends  to  the  person  injured  in  such  form  and 
manner  as  the  court  shall  by  its  sentence  declare  ;  and  if  the  person 
injured  shall  accept  of  any  pecuniary  amends,  it  shall  be  a  bar  to  any 
private  suit  for  defamation,  founded  on  the  same  offence. 

Art.  397.  On  the  trial  of  any  prosecution  for  a  defamation,  if  the  jury 
find  that  the  defendant  is  the  author  of  the  libel,  or  the  speaker  of  the 
defamatory  words,  and  that  the  matter  which  constitutes  the  libel  is 
false  in  the  whole  or  in  part,  they  shall  specially  so  declare  it  in  their 
verdict ;  declaring  the  allegations  of  the  defendant  to  have  been  unfound- 
ed, and,  where  the  case  requires  it,  malicious  ;  and  the  charge  made  by 
the  defendant,  the  verdict  and  the  judgment  of  the  court,  shall,  when 
required  by  the  prosecutor,  be  published  at  the  expense  of  the  defen- 
dant. 

Art.  398.  Whenever  the  defendant,  in  any  prosecution  for  defama- 
tion, shall  avow  himself  the  author  or  speaker  of  the  words  alleged, 
and  shall  acknowledge  that  the  charge  they  import  is  unfounded  ;  or 
that  they  were  not  intended  to  apply  to  the  prosecutor  ;  or  in  cases 
where  there  is  either  ambiguity  in  the  expression,  or  uncertainty  as  to 
their  application  that  they  were  not  used  in  the  sense  in  which  they 
were  understood  by  him,  but  in  another  sense,  stating  it.  In  either  of 
these  cases,  the  punishment  shall  be  confined  to  the  payment  of  costs, 
and  of  the  publication  of  the  proceedings  ;  unless  the  defendant  shall 
make  it  appear  that  the  words,  according  to  their  true  import,  did  not 
imply  any  defamation,  or  did  not  apply  to  the  prosecutor  ;  in  which 
case  he  shall  be  exempt  from  any  costs  ;  but  the  proceedings  may,  in 
like  manner,  be  published. 
3  D 


426  CODE  OF  CHIMES  AND  PUNISHMENTS. 


CHAPTER  II. 

Of  other  injuries  to  reputation  by  effigies  or  dramatic  represen- 
tations, 

Art.  399.  Whoever,  with  intent  to  bring  another  into  contempt,  or 
to  excite  ridicule  or  indignation  against  him,  shall  exhibit,  or  shall  make, 
with  intent  that  it  shall  be  exhibited,  any  effigy  or  figure,  intended 
to  represent  such  other  person,  shall  be  fined  not  exceeding  one  thou- 
sand dollars,  or  imprisoned  not  exceeding  ninety  days,  or  both  ;  and 
part  or  the  whole  of  the  imprisonment  may  be  in  close  custody.  And 
if  more  than  twelve  persons  are  collected  to  witness  such  exhibition,  it 
shall  be  deemed  an  unlawful  assembly,  and  a  riot,  if  they  refuse  to  dis- 
perse when  thereto  legally  required. 

Art.  400.  If  any  one,  with  intent  to  bring  another  into  contempt,  or 
to  excite  ridicule  or  indignation  against  him,  shall  perform,  or  cause 
any  dramatic  work  to  be  performed,  in  which  such  person  is  represent- 
ed and  personated,  either  by  an  imitation  of  his  person,  or  of  any  pecu- 
liarity in  his  manner,  gesture,  language,  or  otherwise,  so  as  to  make  it 
apparent  to  those  who  know  him  that  he  is  the  person  intended  by  such 
personification,  the  offender  shall  be  fined  not  exceeding  one  thousand 
dollars,  or  imprisoned  not  exceeding  ninety  days,  or  both  ;  and  part 
or  the  whole  of  the  imprisonment  may  be  in  close  custody. 


CHAPTER  III. 


Of  false  accusation,  and  threats  of  prosecution. 

Art.  401.  If  any  two  or  more  persons  shall  combine  falsely  to  accuse 
another  of  a  crime,  and  in  consequence  of  such  combination  shall  either 
verbally  or  in  writing  make  such  accusation,  whether  judicially  or 
not,  they  shall  be  fined  not  less  than  one  hundred  nor  more  than  three 
thousand  dollars,  and  imprisoned  at  hard  labour  not  less  than  one  nor 
more  than  four  years,  besides  incurring  the  penalty  of  perjury,  if  that 
crime  should  be  committed  in  the  prosecution  of  their  design. 

Art.  402.  If  the  intent  of  such  combination  be  to  extort  any  pecuniary 
advantage  by  such  false  accusation,  or  the  threat  thereof,  the  punish- 
ment shall  be  doubled. 

Art.  403.  If  any  one,  with  intent  to  extort  money  or  procure  other 
profit,  shall  falsely  accuse,  or  threaten  to  accuse  another  of  any  crime, 
or  of  the  doing  of  any  act  which,  if  the  accusation  were  true,  would 
bring  him  into  contempt,  or  excite  public  indignation  against  him,  the 
person  making  such  threat  or  accusation,  knowing  the  same  to  be  false, 
shall  suffer  the  same  punishment  as  is  set  forth  in  the  last  preceding 
article. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  427 


CHAPTER  IV. 


Of  fabricating  defamatory  papers. 

Art.  404.  Whoever,  with  intent  to  injure  the  reputation  of  another, 
shall,  without  any  lawful  authority,  publish  or  circulate,  or  make,  with 
the  intent  to  publish  or  .circulate,  any  false  writing,  purporting  to  be 
the  act  or  work  of  such  other  person,  which  does  not  constitute  the 
crime  of  forgery,  but  which  would,  if  the  same  were  true,  bring  the 
person,  whose  act  or  work  it  purports  to  be,  into  contempt,  cause  his 
society  to  be  generally  avoided,  excite  public  ridicule  or  indignation 
against  him,  or  injure  him  in  his  office,  profession,  or  trade,  the  offender 
shall  be  fined  not  exceeding  four  thousand  dollars,  and  shall  be  impri- 
soned not  exceeding  one  year  in  close  confinement. 

Art.  405.  The  words  used  in  the  last  preceding  article,  which  occur 
in  the  first  of  this  title,  are  used  in  the  same  sense  in  which  they  were 
explained  in  that,  and  are  subject  to  the  same  limitation. 


TITLE  XIX. 

OF  OFFENCES  AFFECTING  THE  PERSONS  OF  INDIVIDUALS. 

CHAPTER  I. 

Of  assault  and  of  battery. 

SECTION  I. 
Of  simple  assault,  or  simple  assault  and  battery. 

Art.  406.  No  one  has  a  right  to  use  any  VIOLENCE  on  the  person  of 
another,  except  in  the  cases  and  to  the  degree  allowed  by  law  ;  such 
violence  used  in  any  other  case  or  to  a  greater  degree,  with  intent  to 
inflict  an  injury,  is  an  offence  called  a  battery  ;  it  may  be  a  misdemean- 
or, or  a  crime,  according  to  the  measure  of  violence  or  the  intent  with 
which  it  is  offered. 

Art.  407.  By  the  term  "  violence,"  in  the  above  definition,  is  meant 
any  physical  force  applied  either  immediately,  by  any  part  of  the  body 
of  the  person  using  it,  or  by  the  instrumentality  or  intervention  of  any 
other  matter,  whether  animate  or  inanimate,  and  it  comes  within  the 


428  CODE  OF  CRIMES  AND  PUNISHMENTS. 

definition  whether  the  violence  be  produced  by  SECONDARY  MEANS,  in- 
tentionally prepared  by  the  offender,  or  be  caused  by  his  immediate  act. 

Art.  408.  The  explanation  in  the  last  article  may  be  illustrated  thus: 
a  blow  with  the  hand  is  an  example  of  physical  force  applied  immedi- 
ately by  the  body  of  the  person  using  it ;  a  bullet  shot  from  a  gun,  a 
stroke  given  with  a  cudgel,  water  thrown  from  a  bowl,  are  examples 
of  the  employment  of  inanimate  matter  ;  and  one  man  injured  by  push- 
ing another  against  him,  or  by  beating  or  assaulting  the  horse  which 
draws  or  carries  him,  are  instances  of  battery  committed  by  the  enter- 
vention  of  animated  matter,  and  a  wound  given  by  a  spring-gun  or  trap 
purposely  set,  or  an  injury  caused  by  falling  into  a  pit  or  over  an  ob- 
struction intentionally  dug  or  placed  in  a  highway,  are  illustrations  of 
what  is  meant  by  the  words  of  SECONDARY  MEANS. 

Art.  409.  A  menacing  gesture,  showing  either  in  itself  or  by  words 
which  accompany  it,  an  immediate  design  coupled  with  the  ability  to 
commit  a  battery,  is  an  assault ;  which  is  a  misdemeanor,  whether  fol- 
lowed by  a  battery  or  not. 

Art.  410.  The  person  of  every  free  person  being  entitled  to  perfect 
protection  from  the  exercise  of  illegal  force,  the  degree  of  such  force 
applied  to  it  does  not  enter  into  the  definition  ;  it  is  a  battery,  however 
slight,  if  done  with  intent  to  injure. 

Art.  411.  The  injury  meant  by  the  definition  is  not  only  bodily  pain, 
constraint,  or  inconvenience,  but  alarm,  a  sense  of  degradation,  or  other 
disagreeable  emotion  of  the  mind. 

Art.  412.  Whenever  injury  is  caused  by  violence  to  the  person,  the 
intent  to  injure  is  presumed,  and  the  burthen  of  proving  accident,  or 
another  intent,  is  thrown  on  him  who  alleges  it. 

Art.  413.  It  is  sufficient  to  constitute  the  offence  if  the  intent  be  to 
injure  any  one,  although  not  the  person  to  whom  the  violence  was  ac- 
tually offered. 

Art.  414.  When  an  injury  has  been  done  to  the  person,  by  an  act, 
which,  although  not  intended  to  injure,  was  such  as,  in  the  usual  course 
of  things,  might  be  expected  to  produce  such  injury  to  some  one,  it  is 
an  offence  which  shall  be  punished  by  fine,  not  exceeding  two  hundred 
dollars,  or  imprisonment  not  exceeding  sixty  days,  or  both. 

Art.  415.  Violence  offered  to  the  person  does  not  amount  to  the  offence 
of  battery,  where  it  is  done  in  either  of  the  cases,  or  for  either  of  the 
purposes  hereafter  enumerated  in  this  article  ;  that  is  to  say, 

1.  In  the  execution  of  that  right  of  moderate  restraint  or  correction 
which  is  given  by  law  to  the  parent  over  the  child:  the  tutor  or  curator 
over  his  minor  ward  :  the  master  over  the  apprentice  or  servant :  the 
schoolmaster  over  the  scholar :  or  by  persons  duly  authorized  to  use 
such  restraint  or  correction  towards  minors,  by  persons  standing  in 
either  of  the  above  relations  to  them; 

2.  By  the  curator  of  a  person  insane,  for  the  necessary  restraint  of 
the  ward,  although  such  ward  be  of  full  age; 

3.  For  the  preservation  of  order  in  any  meeting  either  for  religious, 
political,  literary,  social  or  any  other  lawful  purposes; 

4.  For  the  necessary  preservation  of  the  peace,  or  to  prevent  the 
commission  of  any  crime; 

5.  To  prevent  or  put  an  end  to  an  intrusion  on  a  legal  possession  ; 

6.  To  make  a  lawful  arrest,  and  to  detain  the  party  arrested  in  lawful 


CODE  OF  CRIMES  AND  PUNISHMENTS.  429 

custody,  in  cases  where,  by  the  Code  of  Procedure,  arrests  are  permitted 
without  warrant ; 

7.  In  obedience  to  the  lawful  order  of  a  magistrate,  or  court  of  com- 
petent authority; 

8.  To  overcome  resistance  to  the  execution  of  any  such  lawful  order. 

9.  In  self  defence,  or  the  defence  of  another,  against  unlawful  vio- 
lence, offered  to  his  person  or  property. 

In  each  of  the  preceding  cases,  the  force  used,  to  effect  either  of  the 
purposes  thereby  declared  to  be  lawful,  must  be  such  as  does  not  ex- 
ceed what  is  necessary  for  the  purpose,  otherwise  it  will  amount  to  the 
offence  of  battery.  That  degree  of  force  shall  be  esteemed  to  have 
been  necessary,  which  would  have  appeared  so  to  one  of  ordinary  pru- 
dence and  firmness,  placed  in  the  situation  in  which  the  accused  was. 

Art.  416.  An  assault  or  battery  cannot  be  justified  by  any  verbal 
provocation;  but  under  certain  circumstances,  such  provocation  may  be 
submitted  to  the  court  in  the  manner  directed  in  the  Code  of  Pro- 
cedure, in  mitigation  of  the  punishment. 

Art.  417.  No  prosecution  shall  be  commenced  for  simple  assault  or 
battery,  but  on  the  complaint  of  the  party  injured,  or  some  one  repre- 
senting, or  duly  authorized  by  him:  when  attended  with  any  other  cir- 
cumstance or  intent  which  aggravates  the  offence,  it  may,  with  the 
exceptions  hereinafter  contained,  be  prosecuted  on  the  complaint  of  any 
person  whatever. 

Art.  418.  The  punishment  for  simple  assault  or  battery  is  fine,  not 
exceeding  one  thousand  dollars,  or  imprisonment  not  exceeding  six 
months,  or  both,  and  the  imprisonment  may  be  in  the  whole,  or  in  part, 
in  close  custody. 

Art.  419.  The  terms,  "degree  of  force,"  mean  as  well  the  instru- 
ment, or  other  secondary  means  employed,  as  physical  or  bodily  power. 


SECTION  II. 

Of  assault  and  battery  in  relation  to  the  person  on  whom,  or  by  whom  it  is  committed. 

Art.  420.  The  law  gives  protection  to  all  persons  against  illegal  vio- 
lence, but  different  remedies  are  applied  according  to  the  effect  of  the 
offence  upon  society,  when  committed  by,  or  upon  particular  persons 
who  are  either  appointed  to  preserve  order,  or  on  those  who  are  par- 
ticularly exposed  to  violence. 

Art.  421.  If  assault  or  battery  be  committed  on  any  public  officer 
while  in  the  legal  execution  of  his  office,  the  punishment  assigned  to 
the  species  of  assault  or  battery  that  is  committed,  shall  be  doubled. 

Art.  422.  No  act  is  an  offence  under  this  section,  unless  it  was  known 
to  the  party  accused,  that  the  person  assaulted  was  a  public  officer,  and 
was  in  the  execution  of  his  office;  and  he  shall  be  deemed  to  have  known 
it  when  it  was  so  openly  declared  in  his  presence,  or  when,  from  the 
circumstances  of  the  case,  he  could  not  have  been  ignorant  both  of 
the  character  of  the  officer,  and  of  the  nature  of  the  duty  he  was  per- 
forming. 

Art.  423.  If  any  public  officer  shall,  under  pretence  of  executing  his 
office,  exercise  any  violence  against  any  other  person,  in  cases  where 


430  CODE  OF  CRIMES  AND  PUNISHMENTS. 

no  force  is  permitted  to  be  used,  or  shall  exceed,  in  cases  where  force 
is  permitted,  that  degree  thereof  which  is  allowed  by  law,  the  punish- 
ment assigned  to  the  species  of  assault  and  battery  that  is  committed, 
shall  be  doubled. 

Art.  424.  If  assault  or  battery  be  committed  by  a  relation  in  the  de- 
scending line  against  his  ascendant;  or  by  a  man  against  a  woman;  or  by 
a  ward  against  his  tutor,  the  punishment  assigned  to  the  species  of  as- 
sault or  battery  that  is  committed,  shall  be  doubled. 


SECTION  III. 

Of  assault  and  battery,  aggravated  by  its  commission  in  a  particular  place. 

Art.  425.  If  an  assault  or  battery  be  committed  in  a  court  of  justice, 
the  punishment  assigned  to  the  species  of  assault  and  battery  that  is  com- 
mitted shall  be  doubled;  but  the  fine  shall  not  be  less  than  one  hundred 
dollars,  nor  the  imprisonment  less  than  sixty  days,  in  close  custody. 

Art.  426.  If  any  one  shall  go  into  a  house  occupied  by  another,  with 
the  intent  of  committing  an  assault  or  battery  on  him,  or  on  any  one 
of  his  family,  or  any  sojourner  in  such  house,  and  shall  there  commit 
such  assault,  or  assault  and  battery,  the  punishment  assigned  to  the 
species  of  assault  and  battery  that  is  committed  shall  be  doubled;  but 
the  fine  shall  not  be  less  than  one  hundred  dollars,  nor  the  imprison- 
ment less  than  sixty  days,  in  close  custody. 

Art.  427.  The  word,  "  family,"  in  the  last  article,  comprehends  all 
persons  who  habitually  reside,  or  are  guests  in  such  house.  By  the 
term,  "house,"  is  intended,  not  only  the  dwelling-house,  but  shops, 
stores,  and  other  buildings,  which  are  used  for  carrying  on  business,  or 
for  domestic  purposes.  By  "sojourners,"  is  meant  any  person  who 
lodges  in,  boards  in,  or  occupies  any  part  of  such  house. 

Art.  428.  In  all  cases  of  offences,  under  this  and  the  last  preceding 
section,  imprisonment  in  close  custody  shall  form  a  part  of  the  punish- 
ment 


SECTION  IV. 

Of  assault  and  battery  aggravated  by  the  intent. 

Art.  429.  If  an  asault  or  battery  be  made  with  an  intent  to  commit 
murder  or  rape,  the  offender  shall  be  imprisoned  at  hard  labour  not 
less  than  six  nor  more  than  ten  years. 

Art.  430.  If  the  assault  or  battery  be  made  with  design  to  DISMEMBER, 
DISFIGURE  or  inflict  a  PERMANENT  INJURY,  the  offender  shall  be  fined 
not  less  than  two  hundred  nor  more  than  two  thousand  dollars,  and 
imprisoned  in  close  custody  not  less  than  sixty  days  nor  more  than  one 
year. 

Art.  431.  If  any  one  shall  commit  an  assault  or  battery,  with  intent 
to  commit  any  other  crime  than  murder  and  rape,  he  shall  be  imprisoned 
at  hard  labour  not  less  than  two  nor  more  than  six  years. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  431 

Art.  432.  An  assault  or  battery,  with  intent  to  force  the  party  injured 
to  commit  an  offence,  shall  be  punished  by  one-half  of  the  punishment 
assigned  to  the  offence  intended  to  be  committed. 

Art.  433.  If  the  assault  or  battery  be  committed  against  a  woman, 
attended  with  any  circumstances,  either  of  words  or  action,  that  are 
calculated  to  wound  the  modesty  of  her  sex,  not  amounting  to  an  at- 
tempt to  ravish  ;  the  offender  shall  be  fined  not  less  than  two  hundred 
nor  more  than  two  thousand  dollars,  and  imprisoned  in  close  custody  not 
less  than  one  month  nor  more  than  one  year.  If  the  offence,  desig- 
nated by  this  article,  be  committed  by  a  tutor  or  curator  against  his 
ward,  or  a  SCHOOLMASTER  against  his  scholar,  the  imprisonment  shall 
be  at  hard  labour,  and  for  a  term  not  less  than  one  nor  more  than  two 
years. 

Art.434.  If  an  assault  or  battery  be  committed,  with  intent  to  DIS- 
HONOUR ;  or  in  consequence  of  a  refusal  to  fight  a  duel,  or  to  provoke 
another  to  fight  a  duel,  or  to  give  a  challenge  ;  the  punishment,  assigned 
to  the  species  of  assault  or  assault  and  battery  that  is  committed,  shall 
be  doubled;  but  the  fine  shall  not  be  less  than  two  hundred  dollars,  nor 
the  imprisonment  less  than  sixty  days,  in  close  custody. 


SECTION  V. 

Of  assault  and  battery,  aggravated  by  the  manner  and  degree  in  which  it  is  inflicted. 

Art.  435.  If  assault  and  battery  be  committed  with  a  DEADLY  WEAPON, 
and  in  consequence  of  a  premeditated  design,  although  there  be  no  de- 
sign to  kill  actually  proved  ;  the  punishment  shall  be  fine,  not  less  than 
two  hundred  nor  exceeding  two  thousand  dollars,  and  imprisonment, 
in  close  custody,  not  less  than  sixty  days  nor  more  than  one  year,  in 
addition  to  the  punishment  assigned  to  the  species  of  assault  or  assault 
and  battery  that  is  committed* 

Art.  436.  If  the  offence  be  committed  in  the  execution  of  a  premedi- 
tated design,  but  not  with  a  deadly  weapon  ;  the  punishment  shall  be 
fine,  not  less  than  fifty  dollars,  and  imprisonment  not  less  than  twenty 
days,  in  addition  to  the  punishment  assigned  to  the  species  of  assault 
and  battery  which  is  committed. 

Art.  437.  If  the  premeditated  design  be  shown  by  LYING  IN  WAIT  ; 
the  punishment,  assigned  to  the  species  of  assault  or  assault  and  battery 
which  is  committed,  shall  be  doubled;  but  shall  not  be  less  than  a  fine 
of  one  hundred  dollars,  and  imprisonment  in  close  custody,  for  thirty 
days. 

Art.  438.  If,  in  consequence  of  any  assault  or  battery,  the  person 
against  whom  it  is  committed  shall  be  DISFIGURED,  or  shall  be  deprived 
of  or  lose  the  use  of  any  MEMBER  OP  HIS  BODY,  or  receive  such  other 
injury  as  shall  render  it  certain  or  probable  that  he  will  for  the  rest  of 
his  life  labour  under  some  bodily  infirmity,  although  there  be  no  design 
proved  of  doing  such  particular  injury — the  punishment  shall  be  fine, 
not  less  than  one  hundred  nor  more  than  two  thousand  dollars,  and 
imprisonment  in  close  custody,  or  at  hard  labour,  not  less  than  three 
months  nor  more  than  two  years. 

Art.  439.  If  either  of  the  injuries,  mentioned  in  the  last  preceding 


432  CODE  OF  CRIMES  AND  PUNISHMENTS. 

article,  shall  be  committed  by  premeditated  design  to  do  that  particular 
injury,  or  by  LYING  IN  WAIT,  although  no  design  to  do  that  particular 
injury  shall  be  proved — the  punishment  shall  be  fine,  not  less  than  five 
hundred  nor  more  than  three  thousand  dollars,  and  imprisonment,  in 
close  custody,  not  less  than  three  months  nor  more  than  two  years. 


SECTION  VI. 
General  provisions. 

Art.  440.  All  the  punishments  assigned  for  the  offences  described  in 
the  second,  third,  fourth  and  fifth  sections  of  this  chapter,  are  CUMULA- 
TIVE in  cases  where  the  different  circumstances,  constituting  such  of- 
fences, concur  in  the  same  offence,  and  the  lighter  species  of  imprison- 
ment shall  be  made  to  commence  after  the  expiration  of  the  heavier. 

Art.  441.  No  prosecution  for  simple  assault  and  battery,  as  described 
in  the  first  section;  or  for  assault,  with  intent  to  ravish  ;  or  for  the  of- 
fence described  in  the  two  last  articles  of  the  fourth  section — shall  be 
commenced  but  on  the  complaint  of  the  party  injured,  or  his  legal  re- 
presentative, or  some  one  duly  authorized  by  him ;  unless  such  offence 
was  committed  in  public,  that  is  to  say,  in  the  presence  of  six  or  more 
persons,  or  in  any  dwelling-house,  shop  or  store — in  the  first  of  which 
cases,  any  person — in  the  latter,  the  occupant  of  the  house,  shop  or 
store,  may  make  the  complaint. 

Art.  442.  Where  two  persons  agree  to  fight,  unless  it  be  with  deadly 
weapons,  no  prosecution  shall  be  commenced  for  assault  and  battery 
committed  in  consequence  of  such  agreement,  on  the  complaint  of  either 
of  the  parties,  or  any  other  person,  unless  the  assault  and  battery  took 
place  in  public,  or  in  a  dwelling-house,  shop  or  store  ;  in  which  cases 
the  prosecution  may  be  commenced  as  is  directed  in  the  last  preceding 
article. 


CHAPTER  II. 

Offatee  imprisonment. 

SECTION  I. 

Of  simple  false  imprisonment. 

Art.  443.   Any  intentional  detention  of  the  person  of  another,,  not  ex- 
pressly authorized  by  law,  is  false  imprisonment. 

Art.  444.  The  detention  to  constitute  this  offence,  may  be  either — 
By  assault. 

By  actual  violence  to  the  person. 

By  some  impediment  opposed  to  the  power  of  locomotion. 
By  threats. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  433 

Art.  445.  The  assault  and  violence  mentioned  in  the  preceding  ar- 
ticle, are  such  as  are  defined  in  the  last  chapter  ;  but  to  constitute  this 
offence,  they  must  be  such  as  to  show  the  intent,  and  to  have  the  effect 
of  detaining  the  party  against  his  will. 

Art.  446.  The  material  impediment  must  be  such  as  is  not  applied 
immediately  to  the  person  ;  in  which  case  it  would  be  actual  violence, 
but  it  must  be  of  such  a  nature  as  to  prevent  the  free  exercise  of  the 
right  of  locomotion,  without  having  recourse  to  extraordinary  means. 
A  door  merely  closed  with  a  latch,  or  in  any  other  usual  mode,  so  that 
the  party  complaining  might,  without  any  unusual  effort,  open  it,  would 
not  be  such  an  impediment ;  but  if  bolted  or  locked  on  the  outside,  it 
would  come  within  the  definition,  although  the  party  imprisoned  might 
escape  by  the  window,  or  was  strong  enough  to  break  the  door. 

Art.  447.  Threats,  to  constitute  the  means  of  false  imprisonment, 
must  be  such  as  would  materially  operate  on  a  person  of  ordinary  firm- 
ness, and  inspire  a  just  fear  of  great  injury  to  person,  reputation  or 
fortune.  The  age,  sex,  state  of  health,  temper  and  disposition  of  the 
party  complaining,  and  all  other  circumstances  that  may  be  calculated 
to  give  greater  or  less  effect  to  the  violence  or  threats,  must  be  taken 
into  consideration  ;  and  the  threat  must  be  to  inflict  the  injury  if  the 
person  departs  from  the  bounds  prescribed. 

Art.  448.  A  detention  of  the  person  shall  not  be  deemed  illegal,  if 
made  in  any  of  the  nine  cases  set  forth  in  the  first  section  of  the  first 
chapter,  and  nineteenth  title  of  this  book;  provided,  under  the  circum- 
stances of  such  case,  a  detention  of  the  person  was  necessary  to  effect 
the  object  relied  on  as  a  justification,  and  was  not  continued  longer 
than  was  so  necessary.  The  rule  for  determining  the  necessity  esta- 
blished by  the  said  section,  also  applies  to  this. 

Art.  449.  The  punishment  for  this  offence  is  fine  not  exceeding  five 
thousand  dollars,  or  imprisonment  not  exceeding  two  years,  or  both, 
and  the  whole  or  part  of  the  imprisonment  may  be  in  close  custody. 


SECTION  II. 


Of  false  imprisonment  aggravated  by  the  purpose  or  the  degree. 

Art.  450.  If  the  party  falsely  imprisoned  be  conveyed,  while  so  im- 
prisoned, out  of  the  state,  the  punishment  shall  be  doubled,  but  shall 
not  be  less  than  five  hundred  dollars  fine,  and  six  months  imprisonment, 
one-half  in  close  custody. 

Art.  451.  If  the  offence  be  committed  with  intent  to  convey  the  per- 
son imprisoned  out  of  the  state,  although  the  purpose  be  not  actually 
effected,  the  punishment  shall  not  be  less  than  three  hundred  dollars 
fine,  and  three  months  imprisonment  in  close  custody. 

Art.  452.  If  the  offence  be  committed  against  a  free  person  for  the 
purpose  of  detaining  or  disposing  of  him  as  a  slave,  knowing  such  per- 
son to  be  free,  the  punishment  shall  be  fine,  not  less  than  five  hundred 
dollars  nor  more  than  five  thousand  dollars,  and  imprisonment  at  hard 
labour,  not  less  than  two  nor  more  than  four  years. 

Art.  453.  If  false  imprisonment  be  used  as  the  means  of  forcing  one  to 
do  an  act  which,  if  voluntarily  done,  would  be  an  offence,  the  punish- 
3E 


434  CODE  OF  CRIMES  AND  PUNISHMENTS. 

ment  shall  be  the  one-half  of  that  designated  in  this  code  for  the  offence 
which  it  was  intended  to  force  the  party  to  commit. 

Art.  454.  If  this  offence  be  committed  with  intent  to  commit  a  crime 
or  misdemeanor,  the  punishment  shall  be  one  half  of  that  designated 
by  this  code  for  the  offence  intended  to  be  committed. 

Art.  455.  If  false  imprisonment  be  used  as  the  means  of  forcing  a 
woman  to  do  an  act  or  submit  to  treatment  injurious  to  the  modesty  of 
her  sex,  the  punishment,  besides  the  fine,  shall  be  confinement  at  hard 
labour  not  less  than  one  and  not  exceeding  three  years  ;  and  if  the 
offence  described  in  this  article  be  committed  by  the  tutor  or  curator 
against  his  ward,  or  a  schoolmaster  against  his  scholar,  the  confine- 
ment at  hard  laboqr  shall  not  be  less  than  three  nor'more  than  six  years. 

Art.  456.  If  an  imprisonment,  otherwise  legal,  shall  be  used  for  the 
purpose  expressed  in  the  preceding  article,  it  shall  be  deemed  a  false 
imprisonment. 


SECTION  III. 

Of  abduction. 

Art.  457.  Abduction  is  false  imprisonment  of  a  woman  with  the  in- 
tent to  force  her  into  a  marriage,  either  with  the  offender  or  some 
other,  and  that  whether  the  marriage  takes  place  or  not. 

Art.  458.  If  any  female,  under  the  age  of  fourteen  years,  be  taken 
away  from  her  father,  mother,  tutor,  or  other  person  having  legal 
charge  of  her  person,  without  their  consent,  either  for  the  purpose  of 
marriage,  concubinage  or  prostitution,  it  is  an  abduction,  although  the 
female  should  consent,  and  although  a  marriage  should  afterwards  take 
place  between  the  parties. 

Art.  459.  The  punishment  for  this  offence  is  a  fine  not  less  than  one 
hundred  nor  more  than  two  thousand  dollars,  or  imprisonment  not  less 
than  sixty  days  nor  more  than  two  years,  or  both  ;  and  the  imprison- 
ment may  be,  in  the  whole  or  in  part,  in  close  custody,  and  in  case  the 
abduction  be  for  the  purpose  of  prostitution,  the  imprisonment  may  be 
at  hard  labour. 


CHAPTER  III. 


Of  rape. 

Art.  460.  Rape  is  the  carnal  knowledge  of  a  woman,  obtained  against 
her  consent,  by  force,  menace  or  fraud. 

Art.  461.  The  force  used  to  constitute  this  crime  must  be  such  in 
kind  as  would  constitute  a  battery,  and  in  degree  such  as  may  reason- 
ably be  supposed  sufficient  to  overcome  resistance,  taking  into  consider- 
ation the  relative  strength  of  the  parties,  and  other  circumstances  of  the 
case. 

Art.  462.  The  menace  must  be  such  as  may  reasonably  be  supposed 
to  inspire  a  just  fear  of  death,  or  great  bodily  harm,  taking  into  consider- 


CODE  OF  CHIMES  AND  PUNISHMENTS.  435 

ation  the  age  and  strength  of  the  parties  ;  the  state  of  health,  temper 
and  disposition  of  the  party  injured,  and  all  other  circumstances  that 
may  have  increased  or  diminished  her  fears,  into  consideration. 

Art.  463.  A  carnal  knowledge  obtained  by  fraud,  does  not  amount  to 
the  crime  of  rape,  unless  the  fraud  consist, 

1.  In  causing  the  woman,  against  whom  the  offence  is  committed,  to 
believe  during  its  commission,  that  the  offender  is  her  husband. 

2.  In  forcibly,  or  without  her  knowledge,  administering  to  the  wo- 
man who  is  injured,  any  substance  that  produces  an  unnatural  sexual 
desire,  or  such  stupor  as  to  prevent  or  weaken  resistance,  and  commit- 
ting the  crime  while  she  is  under  the  operation  of  that  which  is  so  ad- 
ministered. 

Art.  464.  Consent  cannot  be  presumed  to  have  been  given,  from  an 
acquiescence  in  the  sexual  connexion,  when  produced  by  either  of  the 
means  mentioned  in  the  definition. 

Art.  465.  Carnal  knowledge  is  accomplished  by  the  commencement 
of  a  sexual  connexion  ;  proof  of  the  circumstance  that  usually  termi- 
nates it  is  not  required. 

Art.  466.  No  person  can  be  convicted  of  this  offence,  or  of  an  assault 
with  intent  to  commit  it,  who  had  not,  at  the  time  the  offence  is  said  to 
have  been  committed,  attained  the  age  of  fourteen  years. 

Art.  467.  Carnal  knowledge  of  a  female  under  the  age  of  eleven 
years,  is  in  itself  a  rape,  without  any  evidence  of  force,  menace,  impri- 
sonment or  frand. 

Art.  468.  The  punishment  of  rape  is  imprisonment  in  the  peniten- 
tiary for  life. 


CHAPTER  IV. 


Of  abortion. 

Art.  469.  Whoever,  by  violence,  or  by  any  means,  externally  or  in- 
ternally applied  to  any  pregnant  woman,  with  her  consent,  shall  design- 
edly procure  an  abortion,  shall  be  imprisoned  in  the  penitentiary  not 
less  than  three  nor  more  than  six  years.  If  it  be  done  without  her 
consent,  the  punishment  shall  be  doubled. 

Art.  470.  He  who  furnishes  such  means,  knowing  the  purpose  to 
which  they  are  intended  to  be  applied,  is  guilty  of  this  offence. 

Art.  471.  He  who  designedly  furnishes  or  administers  the  means  in- 
tended to  produce  abortion,  when  they  are  administered,  but  fail  in 
their  effect,  shall  suffer  one  half  the  punishment  that  the  crime  would 
have  incurred,  had  it  been  completed. 

Art.  472.  If  the  offender  be  a  physician  or  surgeon,  or  practising  as 
such,  he  shall  suffer  the  highest  punishment  that  can  be  inflicted  for 
the  offence. 

Art.  473.  Nothing  herein  contained  shall  extend  to  the  case  of  an 
abortion  procured  by  medical  advice,  for  the  purpose  of  saving  the 
life  of  the  mother. 

Art.  474.  If  death  ensues,  by  reason  of  the  attempt  to  procure  abor- 
tion, it  is  murder,  except  in  the  case  provided  for  in  the  last  article. 


436  CODE  OF  CRIMES  AND  PUNISHMENTS. 


CHAPTER  V. 


Of  injury  to  the  person  by  malicious  potions. 

Art.  475.  If  any  one  shall  maliciously  cause  another,  without  his 
knowledge,  or  against  his  will,  to  swallow  or  inhale  any  substance 
which  causes  any  interruption  or  violent  change  in  the  usual  functions 
of  his  body,  or  injures  his  health,  he  shall  be  fined  not  less  than  one 
hundred  dollars  nor  more  than  one  thousand  dollars,  and  imprisoned 
in  close  custody  not  less  than  ten  days  nor  more  than  three  months  ; 
and  if  such  substance  was  given  with  intent  to  murder,  he  shall  be 
punished  in  the  manner  hereinafter  directed  in  the  chapter  concern- 
ing murder. 

Art.  476.  If  such  substance  so  maliciously  adtninstered,  causes  any 
malady  of  which  the  party  to  whom  it  is  administered  shall  die  within 
one  year,  although  there  was  no  intent  to  kill,  the  offender  shall  be 
punished  by  imprisonment  at  hard  labour  not  less  than  four  nor  more 
than  ten  years. 

Art.  477.  If  the  malicious  intent  was  not  to  kill,  and  the  substance 
so  administered  shall  be  the  immediate  cause  of  the  death  of  the  person 
to  whom  it  was  given,  the  offender  shall  be  punished  by  imprison- 
ment at  hard  labour  not  less  than  seven  nor  more  than  fifteen  years. 

Art.  478.  If  such  substance,  although  not  coming  within  the  defini- 
tion of  POISON,  be  given  with  intent  to  kill,  and  it  shall  have  that 
effect,  it  is  murder. 


CHAPTER  VI. 
Of  homicide. 

SECTION  I. 

Of  homicide  in  general,  and  of  its  different  divisions. 

Art.  479.  Homicide  is  the  destruction  of  the  life  of  one  human  be- 
ing, by  the  act,  procurement  or  culpable  omission  of  another. 

Art.  480.  The  life  which  is  destroyed  must  have  been  complete  by 
the  birth  of  the  being  who  is  deprived  of  it.  The  destruction  of  a 
child  before  its  birth  is  an  offence  specially  defined. 

Art.  481.  The  destruction  of  human  life  at  any  period  of  its  existence 
after  birth,  is  homicide,  however  near  it  may  be  extinction  from  any 
other  cause. 

Art.  482.  The  destruction  must  be  by  the  act  of  ANOTHER  ;  there- 
fore self-destruction  is  excluded  from  this  definition. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  437 

Art.  483.  It  must  be  operated  by  some  act;  therefore  death,  although 
produced  by  the  operation  of  words  on  the  imagination,  or  the  passions, 
is  not  homicide.  But  if  words  are  used,  which  are  calculated  to  pro- 
duce and  do  produce,  some  act  which  is  the  immediate  cause  of  death, 
it  is  homicide.  A  blind  man,  or  a  stranger  in  the  dark,  directed  by 
words  only  to  a  precipice,  where  he  falls  and  is  killed  ;  a  direction 
verbally  given  to  take  a  drug  that  it  is  known  will  prove  fatal,  and 
which  has  that  effect ;  are  instances  of  this  modification  of  the  rule. 

Art.  484.  Homicide  by  omisssion  only,  is  committed  by  voluntarily 
permitting  another  to  do  an  act,  that  must,  in  the  natural  course  of 
things,  cause  his  death,  without  apprising  him  of  his  danger,  if  the  act 
be  involuntary,  or  endeavouring  to  prevent  it  if  it  be  voluntary.  He 
shall  be  presumed  to  have  permitted  it  voluntarily,  who  omits  the  ne- 
cessary means  of  preventing  the  death,  when  he  knows  the  danger, 
and  can  cause  it  to  be  avoided,  without  danger  of  personal  injury  or 
pecuniary  loss.  This  rule  may  be  illustrated  by  the  examples  put  in 
the  last  preceding  article  :  if  the  blind  man  is  seen  walking  to  the  pre- 
cipice by  one  who  knows  the  danger,  can  easily  apprize  him  of  it,  but 
does  not  ;  or  if  one  who  knows  that  a  glass  contains  poison,  sees  him 
about  to  drink  it,  either  by  mistake  or  with  intent  to  destroy  himself, 
and  makes  no  attempt  to  prevent  him  ;  in  these  cases  the  omission 
amounts  to  homicide. 

Art.  485.  The  exposing  another  to  causes  either  natural  or  adventi- 
tious, which  in  the  natural  course  of  things  must  probably  produce  and 
do  actually  produce  death,  is  homicide  ;  and  this  may  be  either  by  act, 
or  by  omission  ;  the  placing  an  infant  or  other  helpless  person,  in  the 
open  air  during  a  winter's  night  by  which  he  is  frozen  to  death,  or  in 
the  midst  of  a  frequented  high  way  where  he  is  killed  by  the  wheel  of 
a  carriage,  is  an  illustration  of  this  species  of  homicide  by  act. 

He  who  shall  with  the  knowledge  of  the  danger  leave  a  person  of 
such  description  to  perish  in  either  of  those  situations  when  he  could 
have  been  removed  without  personal  danger  or  pecuniary  loss  commits 
this  kind  of  homicide  by  omission. 

Art.  486.  Every  being  of  the  human  species,  of  whatever  age  or  con- 
dition, is  included  in  the  relative  terms,  "one  human  being,"  and 
"  another,"  in  the  definition  of  this  article.  Therefore  no  death  is 
homicide  that  is  not  caused  by  human  agency.  If  the  agent  or  sufferer 
have  never  attained,  or  have  been  deprived  of  reason,  it  is  still  homicide. 

Art.  487.  Human  agency  must  be  the  cause  of  the  death;  therefore, 
he  who  gives  a  slight  wound,  which  from  neglect  becomes  a  mortifica- 
tion, and  proves  fatal,  is  not  guilty  of  homicide.  If  the  same  kind  of 
injury  proves  fatal  by  the  administration  of  improper  remedies,  the 
homicide  is  not  the  act  of  him  who  inflicted  the  wound,  but  of  the  one 
who  applied  the  remedy,  and  may  be  criminal  or  not,  according  to  the 
intent  and  other  circumstances. 

Art.  488.  Althgugh  the  injury  that  caused  the  death  might  not,  under 
other  circumstances,  have  proved  fatal,  yet  if  without  any  evident  neg- 
lect, or  treatment  manifestly  improper,  it  causes  death,  it  is  homicide. 
Thus,  if  an  artery  be  cut,  and  the  party  bleed  to  death  for  want  of  aid, 
it  is  homicide,  although,  if  proper  assistance  had  been  obtained,  the 
artery  might  have  been  secured.  What  shall  be  proper  or  conclusive 
evidence  of  the  cause  of  death  in  questions  of  homicide,  is  found  in  the 
Code  of  Evidence. 


438  CODE  OF  CRIMES  AND  PUNISHMENTS. 

Art.  489.  Death,  or  the  total  extinction  of  life,  is  a  necessary  part  of 
the  definition.  If  the  act  produce  disability  of  any  kind,  or  even  the 
extinction  of  any  or  all  of  the  senses,  it  is  not  homicide,  while  life 
remains. 

Art.  490.  The  nature  of  the  means  or  instrument  by  which  death  is 
caused  or  inflicted,  is  not  essential  to  constitute  homicide.  All  means 
by  which  life  is  destroyed,  are  within  the  definition. 

Art.  491.  Homicide  is  justifiable,  excusable,  or  culpable. 


SECTION  II. 

Of  justifiable  homicide. 

Art.  492.  That  is  justifiable  homicide,  which,  although  committed 
voluntarily,  is  inflicted  in  cases  where  it  is  required  or  permitted  by 
law.  These  cases  are  enumerated  in  the  following  section. 


SECTION  III. 


Of  homicide  justified  by  the  requisition  of  law. 

Art.  498.  Homicide  of  a  public  enemy  in  the  prosecution  of  war,  is 
justified  by  the  laws  of  nations.  An  enemy  in  the  act  of  hostile  inva- 
sion or  occupation  of  any  part  of  this  state,  is  not  within  the  protection 
of  its  laws  ;  but  an  enemy,  although  one  of  an  invading  force,  who  is 
within  the  state  as  a  prisoner  of  war,  as  a  deserter,  as  the  bearer  of  a 
flag  of  truce,  or  in  any  other  character  which  does  not  show  a  design 
to  commit  hostilities,  and  all  enemies'  subjects,  brought  within  the  state 
by  force,  coming  there  without  any  hostile  intent,  or  found  there  at  the 
commencement  of  the  war,  are  entitled  to  the  same  personal  protection 
of  the  laws  as  citizens  are,  excepting  only  the  degree  of  personal  re- 
straint that  may  be  imposed  by  the  laws  of  the  United  States,  or  the 
rules  and  usages  of  war. 

Art.  494.  Neither  the  laws  of  the  United  States,  nor  the  laws  of  na- 
tions, justify  the  homicide  even  of  an  invading  enemy,  by  poison,  by 
assassination,  or  by  the  use  of  poisoned  weapons. 

Art.  495.  By  assassination,  in  the  preceding  article,  is  meant  homicide, 
committed  on  a  public  enemy  by  one  who  has  come  under  an  express 
or  implicit  obligation  to  refrain  from  any  hostile  act ;  if  one  who  should 
be  received  as  a  deserter  in  the  enemy's  camp,  or  should  go  there  in 
the  disguise  of  a  person  bringing  provisions,  or  who  being  a  prisoner 
should  be  suffered  to  go  at  large  on  his  parole,  and  should,  under  such 
circumstances,  put  an  enemy  to  death,  afford  an  example  of  what  is 
meant  by  the  term  as  here  employed. 

Art.  496.  Those  are  PUBLIC  ENEMIES,  who  are  declared  such  by  the 
constitutional  authority,  and  those  who  have  declared  themselves  such, 
either  in  the  manner  usual  among  nations,  or  by  a  hostile  invasion  of 
the  territory  of  the  nation. 

Art.  497.  It  may  also  be  required  by  law,  that  persons  convicted  of 
certain  offences,  be  punished  by  death.  Whenever  such  laws,  either 


CODE  OF  CRIMES  AND  PUNISHMENTS.  439 

of  the  United  States  or  of  this  state,  exist,  the  execution  of  a  criminal, 
in  pursuance  of  the  unreversed  sentence  passed  by  a  competent  court, 
in  the  manner,  at  the  time,  and  by  the  officer,  prescribed  by  the  law 
and  the  sentence,  is  justifiable  homicide. 

Art.  498.  The  preceding  articles  of  this  section  describe  the  only 
cases  in  which  homicide  can  be  justified,  as  being  required  by  law.  It 
is  permitted,  as  a  necessary  alternative,  to  avoid  a  greater  evil  in  the 
following  cases,  that  is  to  say,  in  the  execution  of  certain  public  duties, 
specially  designated  :  to  prevent  the  commission  of  certain  enumerated 
crimes,  and  in  defence  of  person  or  property,  against  the  injuries,  and 
in  the  manner  designated  by  law.  The  circumstances  under  which 
homicide  will  be  justified  in  each  of  the  above  cases,  is  more  fully  de- 
veloped in  the  following  sections. 


SECTION  IV. 

Of  homicide,  permitted  in  the  performance  of  a  duty  to  the  state. 

Art.  499.  There  are  certain  public  duties  of  such  importance  to  socie- 
ty, that  those  upon  whom  the  obligation  to  perform  them  devolves,  are 
bound  to  it  at  the  risk  of  their  lives.  Justice,  therefore,  requires,  that 
the  law  should  permit  all  proper  means  of  defence  against  the  dangers 
to  which  they  are  exposed.  On  this  principle  is  founded  the  impunity 
allowed  by  law  to  the  class  of  homicides,  treated  of  in  this  section, 
which  designates  what  public  duties  come  within  its  purview,  and  un- 
der what  circumstances  homicide,  done  in  the  performance  of  them, 
shall  be  justified. 

Art.  500.  The  first  of  these  duties  is  the  execution  of  the  lawful 
orders  of  MAGISTRATES  and  courts  ;  and  in  such  cases,  homicide,  by 
the  person  legally  charged  with  that  duty,  is  justifiable  where  it  is  vio- 
lently resisted,  and  he  has  a  JUST  REASON  to  fear,  that  his  own  life  will 
be  in  danger  if  he  persevere  in  executing  the  order  ;  subject,  however, 
to  the  modifications  and  restrictions  contained  in  the  following  rule  : 


•fts  to  the  order  itself. 

1.  The  order  must  be  that  of  a  MAGISTRATE  or  court,  having  legal 
power  to  issue  it. 

2.  It  must  have  so  much  of  the  form  prescribed  by  law  as  is  declared 
necessary  to  give  it  validity. 

3.  Whether  the  court  or  magistrate  have  judged  erroneously  or  not 
in  making  the  order  :  it  is  a  justification  to  the  person  executing  it,  if 
it  emanate  from  a  proper  authority,  and  is  made  in  legal  form,  or  with 
all  essential  requisites. 


ffc 

orde't 
'.hat  c 

4.  The  person  must  be  an  OFFICER  OF  JUSTICE,  or  some  other  legally 


•fls  to  the  person  executing  the  order,  and  his  conduct  in  perform- 
ing that  duty. 


440  CODE  OF  CRIMES  AND  PUNISHMENTS. 

authorized  to  perform  the   duty  in  question,   according  to  the  pro- 
visions contained  in  the  Code  of  Procedure. 

5.  If  an  officer  of  justice,  and  performing  an  act  which  none  but  an 
officer  could  do,  he  must  have'taken  the  oath  of  office,  and  given  security 
when  they  are  required  by  law. 

6.  He  must  execute  the  order  in  the  manner  prescribed  by  law,  and 
must  in  all  cases,  whether  it  be  elsewhere  prescribed  or  not,  at  the  time 
of  performing  the  duty,  and  before  doing  the  act  which  caused  the 
homicide,  have  declared  to  the  person  making  opposition,  that  he  was 
an  executive  officer  of  justice,  or  had  other  authority  (designating  it)  to 
perform  the  duty. 

7.  If  the  order  be  by  written  warrant,  and  the  party  against  whom  it 
is  issued,  submits,  but  desires  to  see  it,  or  hear  it  read,  the  person  charged 
with  its  execution,  is  bound  to  produce,  and  show,  or  read  it,  accord- 
ing to  the  request ;  and  if  he  refuse  such  request,  and  persevere  in 
executing  the  order,  it  shall  be  no  justification  to  him  for  any  homicide 
committed  after  such  refusal. 

8.  If  the  order  be  to  make  an  arrest,  the  person  executing  it  is  bound 
not  only  to  show  the  order  where  it  is  in  writing,  and  is  required,  in 
the  manner  prescribed  in  the  last  preceding  rule,  but  to  declare  in  all 
cases,  at  least  to  the  person  he  is  about  to  arrest,  for  what  offence,  or 
whose  suit,  (if  in  a  civil  suit)  the  arrest  is  made. 

9.  At  or  after  the  arrest,  if  any  resistance  be  made  by  force,  the 
officer,  or  other  person  making  the  warrant,  is  bound  to  oppose  to  such 
resistance,  a  force  sufficient  so  to  overcome  it,  as  to  be  enabled  to  per- 
form the  duty  required  of  him  by  the  writ,  and  no  greater  force  ;  but  if 
the  resistance  be  of  such  a  nature  as  to  give  him  JUST  REASON  TO  FEAR 
THE  LOSS  OF  LIFE  if  he  persevere,  he  may  then  use  such  force  as  is 
necessary  for  his  own  defence,  and  if  homicide  ensues,  he  is  justified. 

10.  An  endeavour  to  escape  before  or  after  an  arrest,  by  flight  only, 
will  not  justify  the  infliction  of  death,  or  the  use  of  DEADLY  WEAPONS 
to  prevent  it  ;  but  if  the  fugitive  be  armed  with  a  deadly  weapon,  and 
the  pursuer  has  JUST  REASON  TO  FEAR,  from  the  threats  or  gestures  of 
the  person  pursued,  that  his  own  life  will  be  endangered  by  continuing 
the  pursuit,  he  may  then  use  deadly  weapons  to  stop  the  flight  ;  and 
if  they  produce  death,  he  is  justifiable. 

11.  The  case  of  prisoners  attempting  to  escape  from  a  public  prison, 
is  an  exception  to  the  last  preceding  rule.     Deadly  weapons  may  be 
used,  and  death  inflicted  on  any  prisoners  legally  committed,  who  shall 
endeavour,  BY  BREACH  OF  PRISON,  to  escape,   but  not  until  previous 
warning  has  been  given,  and  the  prisoners  persevere  in  their  attempt 

12.  These  rules  apply  as  well  to  the  justification  of  those  who  are 
legally  aiding  an  executive  officer  of  justice  in  the  execution  of  a  legal 
order,  as  to  that  of  the  officer,  or  other  person,  specially  charged  with 
the  duty.     They  also  apply  to  the  homicide  of  any  other  person  oppos- 
ing the  execution  of  the  order,  as  well  as  to  him  against  whom  the 
order  is  directed. 

13.  They  apply  also  to  orders  in  civil  suits,  as  well  as  in  criminal 
prosecutions,  and  to  courts  and  magistrates  of  the  United  States,  law- 
fully acting  in  this  state,  as  well  as  to  the  state  magistrates  and  courts. 

14.  The  words  "just  reason,"  as  used  in  this  section,  mean  such 
reasons  as  would  impress  a  man  of  ordinary  understanding  and  firm- 


CODE  OF  CRIMES  AND  PUNISHMENTS.  441 

ness,  if  placed  in  the  same  circumstances,  with  a  belief  that  he  was  in 
great  hazard  of  losing  his  life. 

Art.  501.  Another  duty  to  the  state,  which  justifies  homicide  when 
necessary  to  its  performance,  is  the  opposition  to  rebellions,  insurrec- 
tions and  riots.  Death  inflicted  by  any  one  acting  in  pursuance  to  the 
provisions  of  this  code,  or  to  those  of  any  other  law  of  the  state  that  may 
be  made  for  the  suppression  of  riots,  is  justifiable  homicide. 

Art.  502.  Whenever  any  law  of  this  state,  or  of  the  United  States, 
shall  require  an  officer  or  any  other  person  to  perform  a  public  duty, 
and,  from  the  law,  or  the  nature  of  the  duty,  the  legislative  will  plainly 
appears  to  be  that  the  duty  should  be  performed,  notwithstanding  any 
forcible  opposition,  then  homicide  in  the  performance  of  the  duty  is 
justifiable,  provided  the  directions  of  such  law  be  strictly  pursued,  and 
subject  to  such  of  the  rules  laid  down  in  this  section  for  the  execution 
of  judicial  orders  as  can  be  applied  to  the  case,  although  it  may  not  be 
a  judicial  order  ;  but  if  it  be  a  case  of  judicial  order,  then  subject  to 
all  those  rules;  and  all  those  which  designate  the  nature  of  the  opposition, 
and  to  limit  the  lawful  resistance  that  may  be  applied  to  overcome  it, 
are  hereby  declared  to  apply  to  all  cases  provided  for  by  this  article. 

Art.  503.  Whenever  any  law  of  the  state,  or  of  the  United  States,  shall 
give  authority  to  any  officer  or  other  person  to  call  for  the  aid  of  the 
country  or  the  military  power,  to  enforce  its  execution,  it  shall  be 
deemed,  without  any  other  indication,  such  a  case  as  is  contemplated 
by  the  last  preceding  article. 

Art.  504.  Homicide  by  a  military  or  a  naval  officer,  or  by  any  one 
under  the  command  of  either  of  them,  or  by  an  officer  or  soldier  of 
the  militia  on  actual  service,  is  justifiable  if  it  happen  in  the  lawful 
arrest  of  a  deserter  or  other  person  amenable  to  the  military  laws  to 
answer  for  a  military  offence  ;  but  in  such  case  the  rules  laid  down  in 
this  section  with  respect  to  judicial  arrest  must  he  observed. 


SECTION  V. 

Of  homicide  permitted  in  defence  of  person  or  property. 

Art.  505.  Homicide  is  permitted  in  the  necessary  defence  of  person 
or  property  under  the  circumstances  and  restrictions  set  forth  in  the 
following  articles. 

Art.  506.  For  the  prevention  of  the  crimes  of  murder  by  violence, 
rape,  robbery,  arson,  burglary  and  nocturnal  theft ;  the  necessity  of  the 
case  permits  the  infliction  of  death  on  those  who  have  begun  to  com- 
mit either  of  them,  subject  to  the  following  rules,  that  is  to  say, 

1.  The  intent  to  commit  the  crime  must  be  unequivocal,  and  appar- 
ent by  acts,  or  by  acts  coupled  with  words. 

2.  The  homicide  for  this  cause  cannot  be  justified,  unless  it  be  done 
before  the  crime  is  completed ,  and  after  it  is  begun  to  be  executed,  that 
is  to  say,  after  some  act  is  done  showing  unequivocally  either  by  itself, 
or  by  words  coupled  with  it,  an  intent  immediately  to  commit  the  crime. 

3.  The  crime  is  not  completed  in  the  sense  of  the  last  preceding  ar- 
ticle, while  the  offender,  in  the  case  of  murder,  is  still  committing  vio- 
lence, although  the  mortal  stroke  may  have  been  given  ;  in  the  case  of 
rape,  while  the  ravisher  is  continuing  his  violence,  although  he  may 

3F 


442  CODE  OF  CRIMES  AND  PUNISHMENTS. 

have  done  enough  to  make  himself  guilty  of  the  crime  ;  in  the  case 
of  robbery,  while  the  robber  is  still  in  the  presence  of  the  party  rob- 
bed, or  is  flying  with  his  booty  ;  and  in  the  cases  of  arson,  burglary, 
and  nocturnal  theft,  while  the  offender  is  still  in  the  building  where  the 
crime  has  been  committed. 

4.  The  beginning  to  commit  either  of  the  crimes  above  mentioned, 
is  prima  facie  evidence  of  the  necessity  of  inflicting  death,  to  prevent 
the  completion  of  it;  but  if  the  crime  would  have  been  prevented,  or 
the  persons  of  the  offenders  secured  by  means  within  the  knowledge 
and  power  of  the  person  doing  the  homicide,  without  resorting  to  that 
act,  and  without  danger  of  life,  it  is  not  justifiable  homicide  ;  but  re- 
ceives its  designation  from  the  circumstances  of  extenuation  or  crimi- 
nality attending  it,  according  to  the  rules  hereafter  established  in  this 
code. 

5.  The  rules  contained  in  this  article  relate  to  death  inflicted  by  de- 
sign ;  the  use  of  weapons  or  other  means  calculated  to  produce  death, 
is  presumptive  evidence  of  the  design  to  inflict  it. 

Art.  507.  When  any  other  crime,  but  one  of  those  enumerated  in  the 
last  preceding  article,  is  attempted,  it  is  not  lawful  to  inflict  death  for 
its  prevention,  until  all  reasonable  endeavours  have  been  made  to  avoid 
the  danger,  if  the  crime  be  one  of  those  which  endanger  the  person, 
or  to  prevent  it  by  other  means,  if  it  affect  property. 

Art.  508.  The  endeavour  to  avoid  the  danger,  in  the  case  of  a  crime 
attempted  against  the  person,  which  are  mentioned  in  the  preceding 
article,  are, 

1.  The  use  of  such  means  as  are  in  the  party's  power  to  repel  the 
assault,  short  of  such  as  are  of  a  nature  to  produce  death,  if  the  nature 
of  the  attack,  the  weapons  with  which  it  is  made,  the  relative  weakness 
of  the  assailant,  or  other  circumstances,  enable  the  person  assailed  to 
secure  himself  without  resorting  to  the  infliction  of  death,  or  the  use 
of  such  means  as  will  probably  produce  it. 

2.  If  he  have  not  the   means  to  repel  the  attack  without  endan- 
gering the  life  of  the  assailant,  or  do  not  think  proper  to  use  those 
means,  if  he  have  them,  he  must  retire  from  the  assailant ;  the  idea  of 
dishonour  being  attached  to  such  means  of  avoidance  will  not  excuse 
the  neglect  of  it ;  the  laws  can  acknowledge  no  dishonour  in  obedience 
to  what  they  command.     This  retiring  must  be  with  a  bona  fide  intent 
to  avoid  the  danger  :  it  must  be  continued  until  it  is  stopped  by  some 
material  obstacle,  or  the  want  of  physical  power  to  continue  it.     But 
in  cases  where  retreat  would  expose  to  greater  danger  than  facing  the 
attack,  it  is  not  required. 

Art.  509.  Even  after  using  the  endeavours  above  mentioned  to  avoid 
personal  dangers  without  effect,  it  is  not  lawful  to  inflict  death  in  order 
to  repel  every  attack,  or  avoid  every  species  of  personal  danger  :  it 
must  be  such  an  attack  as  gives  a  JUST  PEAR  of  death,  or  of  permanent 
bodily  injury. 

Art.  510.  Whatever  circumstances  are  by  this  section  declared  to  be 
a  justification  for  homicide,  in  the  party  against  whom  the  crime  is  com- 
mitted or  intended,  will  be  a  justification  for  others  interfering  with  a 
bona  fide  intention  to  prevent  the  commission  of  a  crime. 

Art.  511.  Homicide  is  also  justifiable  in  the  necessary  defence  of 
property,  although  the  attempt  to  take  it  do  not  amount  to  the  crimes 


CODE  OF  CRIMES  AND  PUNISHMENTS.  443 

above  provided  for,  of  murder  by  violence,  robbery,  rape,  burglary, 
and  nocturnal  theft.  Every  man  has  a  right  to  his  legal  possession  of 
property  ;  he  is  not  bound  to  yield  it  to  the  force  of  any  invaders.  If, 
therefore,  any  one  attempt  by  illegal  force  to  deprive  another  of  pro- 
perty, either  real  or  personal,  in  his  actual,  corporal  and  legal  possess- 
ion :  the  legal  and  actual  possessor  may  defend  his  possession  by  a  force 
proportioned  to  that  with  which  it  is  attacked,  and  if  the  aggressor 
persist  in  his  unlawful  attempt  in  a  manner  that  gives  the  party  attack- 
ed a  JUST  FEAR  of  death,  he  is  justified  in  defending  himself  and  His 
possession  by  killing  the  invader. 

This  article  is  to  be  construed  by  the  following  rules,  and  modified  as 
follows,  that  is  to  say, 

1.  The  possession  must  be  of  a  corporal  property,  not  a  mere  right ; 
and  must  be  an  ACTUAL  not  a  mere  CONSTRUCTIVE  possession. 

2.  The  possession  must  be  a  legal  one  ;   but  it  is  not  necessary  that 
the  actual  property  be  vested  in  the  possessor,  but  he  must  have  ac- 
quired the  right  of  possession. 

3.  The  resistance  must  be  made  to  the  illegal  force  during  its  exer- 
cise ;  if  the  actual  possession  be  once  lost,  it  will  be  no  justification  of 
a  homicide  that  it  was  inflicted  in  an  attempt  to  regain  it. 

4.  No  resistance  that  would  probably  produce  death,  can  be  justified 
in  this  case,  unless  the  attack  is  made  in  such  a  manner  as  to  create  in 
the  possessor  a  JUST  FEAR  of  death,  in  case  he  should  persevere  in  the 
defence  of  his  possession. 

5.  Every  endeavour  in  the  power  of  the  possessor  must  have  been 
used  to  induce  the  aggressor  to  desist,  both  by  words  and  such  physi- 
cal means  as  were  in  his  power,  before  resorting  to  the  means  that 
produced  death. 

6.  Every  thing  in  this  article  which  relates  to  the  nature  of  the  pos- 
session, or  the  degree  of  force  that  may  be  justifiably  used,  applies  to 
any  person  aiding  the  possessor  to  maintain  his  possession. 

7.  Nothing  in  this  article  contained,  relates  to  the  defence  of  pro- 
perty against  an  attempt  to  rob,  which  is  heretofore  provided  for. 

Art.  512.  Except  in  the  instance  provided  for,  by  the  last  preceding 
article,  homicide  is  not  permitted  by  law  for  the  prevention  of  any 
offence  that  is  not  a  crime  ;  thus,  neither  simple  assault  and  battery, 
nor  trespass,  will  justify  homicide,  nor  will  any  crime  not  accompa- 
nied by  force  ;  thus,  neither  private  stealing,  nor  even  poisoning,  can 
be  lawfully  prevented  by  homicide. 


SECTION  VI. 

Of  excusable  homicide. 

Art.  513.  Homicide  is  excusable,  and  consequently  not  criminal, 
whenever  the  death  of  one  human  being,  though  caused  by  the  act  of  ano- 
ther, can  be  attributed  neither  to  negligence  nor  design,  but  happens  in 
the  prosecution  of  a  lawful  act  by  lawful  means  ;  and  is  caused  by  some 
accident  which  ordinary  human  prudence  could  not  foresee  nor  avoid. 
If  in  shooting  at  game  on  his  own  grounds,  a  man  kill  another  who  is 
hid  unknown  to  him  in  the  wood,  he  commits  homicide,  for  it  comes 


444  CODE  OF  CRIMES  AND  PUNISHMENTS. 

within  the  definition  of  that  act ;  but  it  is  excusable,  for  it  was  invo- 
luntary, and  was  not  caused  by  negligence  ;  but  if  the  shot  is  fired 
across  a  highway,  and  one  travelling  thereon  is  killed,  there  is  negli- 
gence, and  the  homicide  is  not  excusable. 

Art.  514.  The  lawful  act  which  causes  the  death  must  be  done  by 
lawful  means,  used  in  a  lawful  degree.  It  is  lawful  to  correct  a  scho- 
lar, or  an  apprentice  ;  but  if  this  be  done  with  an  instrument  likely  to 
produce  death,  or  if  with  a  proper  instrument  the  chastisement  be  cru- 
elly inflicted,  and  death  ensue,  it  is  not  excusable  homicide. 


SECTION  VII. 
Of  culpable  homicide. 

Art.  515.  Every  homicide  that  is  neither  justifiable  nor  excusable, 
according  to  the  foregoing  definitions  and  illustrations,  is  a  culpable 
homicide. 

They  are  negligent  or  voluntary. 

§1. 
Of  negligent  homicide. 

Art.  516.  The  species  of  homicide  thus  called,  is  that  which  is  in- 
flicted without  design  to  kill  either  the  person  actually  killed  or  any 
other. 

Art.  517.  This  is  an  offence,  of  which  the  several  grades  are  distin- 
guished by  the  degree  of  negligence  and  the  nature  of  the  act,  in  the 
performance  of  which  the  homicide  happens  ;  each  degree  forming  a 
separate  class  of  offences. 

§2. 
Of  negligent  homicide  in  the  first  degree. 

Art.  518.  The  first  degree  of  this  offence,  is  homicide  involuntarily 
inflicted  in  the  performance  of  a  LAWFUL  ACT,  in  which  there  is  no 
apparent  risk  of  life,  by  ordinary  means,  but  without  that  care  and 
precaution  which  a  prudent  man  would  take  to  avoid  the  risk  of  de- 
stroying human  life. 

Whoever  is  guilty  of  this  offence,  in  this  degree,  shall  suffer  impri- 
sonment, not  less  than  two  months  nor  more  than  one  year,  of  which 
such  party  may  be  in  close  custody  as  the  court  may  direct. 

Art.  519.  The  following  rules,  derived  from  the  foregoing  defi- 
nition, are  to  be  observed  : 

1.  The  act,  in  the  performance  of  which  the  homicide  happens, 
must  be  lawful  ;   by  which  is  meant,  any  thing  that  is  not  forbidden 
by  the  penal  law,  or  which  would  not  give  just  cause  for  a  civil  suit. 

2.  It  is  an  essential  part  of  this  definition,  that  the  danger  of  causing 
death,  in  doing  the  act,  should  not  be  apparent.     Where  there  is  such 
apparent  danger,  the  offence  becomes  a  crime. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  445 

3.  The  terms,  "ordinary  means,"  in  the  definition,  are  not  con- 
fined strictly  to  such  as  are  usually  employed  ;   they  are  intended  to 
admit  the  employment  of  means  different  from  those  ordinarily  used, 
provided  they  are  not  more  dangerous. 

4.  The  want  of  care  and  precaution  distinguishes  this  from  excusa- 
ble homicide,  and  places  it  in  the  first  or  incipient  degree  of  culpabil- 
ity.    In  all  that  regards  the  preservation  of  human  life,   a  greater 
degree  of  caution  is  required,  by  law,  than  it  demands  in  other  cases. 
By  "  caution,"  is  meant  a  consideration  of  probable  consequences, 
and  the  use  of  means  to  avoid  them,  if  they  appear  injurious.     There- 
fore, in  order  to  avoid  the  guilt  of  this  offence,  it  is  not  enough  to  ab- 
stain from  acts,  or  from  the  use  of  such  means,  in  performing  them,  in 
which  a  risk  of  homicide  is  known  or  apparent ;    but  where,  from  the 
nature  of  the  case,  it  is  as  reasonable  to  believe,  that  danger  of  destroy- 
ing life  may  exist,  as  that  it  may  not  exist,  the  law  requires  a  pre- 
vious examination. 

5.  The  degree  of  caution  described,  as  that  which  a  prudent  man 
would  use,  must  be  determined  by  a  consideration  of  the  circumstances 
as  they  appeared  before  the  event ;   if  the  event  alone  were  sufficient 
to  prove  want  of  caution,  all  casual  homicide  would  be  culpable. 

1st  Example.  When  death  is  casually  inflicted,  by  the  discharge 
of  fire  arms  which  are  believed  not  to  be  loaded,  without  examining 
whether  they  are  so  or  not,  it  constitutes  this  offence.  If  the  examina- 
tion be  made,  and  owing  to  some  unknown  cause,  although  loaded, 
they  appear  to  be  empty  ;  or,  if  unknown  to  the  person  using  them, 
they  have  been  loaded  immediately  after  the  examination,  due  caution 
has  been  used,  and  there  is  no  offence. 

2d  Example.  If  one,  in  blasting  a  quarry,  although  at  a  distance  from 
a  public  way,  makes  the  explosion  without  examining  whether  any  per- 
sons are  so  near  as  to  be  injured  by  it,  the  offence  is  incurred.  If  he 
make  the  examination  and  discover  no  one,  he  is  innocent,  although 
a  person  concealed  from  his  view,  or  one  who  came  suddenly  on  the 
spot,  should  be  killed.  If  the  quarry  be  in  a  frequented  place,  or  he 
knew  there  were  bystanders,  another  offence  would  be  incurred. 

Art.  520.  Death  caused  by  any  kind  of  fire-arms,  purposely  directed 
against  any  one,  without  intention  to  kill  or  injure,  but  merely  in  sport, 
is  negligent  homicide  of  the  first  grade,  whether  any  examination  of 
the  arms  have  been  previously  made  or  not. 

§3. 
Of  negligent  homicide  in  the  second  grade. 

Art.  521.  Homicide  of  the  second  grade,  is  that  which  is  involuntarily 
committed  in  the  performance  of  a  lawful  act,  but  under  circumstances, 
in  a  manner,  or  by  means,  which  cause  an  apparent  danger  of  inflicting 
death,  without  due  precaution  to  avoid  such  danger.  It  is  punishable  by 
imprisonment,  not  less  than  two  nor  more  than  four  years,  in  the  peni- 
tentiary, or  in  close  custody,  at  the  discretion  of  the  court. 

Art.  522.  An  important  distinction  between  this  and  the  first  grade 
of  negligent  homicide  is,  that  in  this  the  risk  of  causing  death,  or  other 
great  bodily  harm,  must  be  apparent;  by  which  is  meant,  that  it  must 


446  CODE  OF  CRIMES  AND  PUNISHMENTS. 

necessarily  be  perceived  by  a  common  observer,  without  inquiry  or 
examination,  merely  by  witnessing  the  act,  and  reflecting  on  its  conse- 
quences. 

Art.  523.  The  words,  "lawful  act,"  used  in  the  definition,  have 
the  same  meaning  as  is  explained  in  that  of  the  first  grade  of  this  of- 
fence. 

Art.  524.  The  word,  "  circumstances,"  used  in  the  description  of  this 
offence,  relates  to  the  time,  place,  and  such  other  concomitants  of  the 
act  as  make  it  dangerous,  although  it  would  not  be  so  at  other  times, 
in  other  places,  or  attended  by  other  accompaniments. 

Art.  525.  The  word  "  manner,"  relates  to  the  mode  in  which  the  act 
is  done,  or  in  which  the  instruments,  or  means  that  produce  it,  are 
used  or  employed.  . 

Art.  526.  The  term,  "  mean"  is  intended  to  include  the  instruments 
with  which  the  act  is  performed,  or  the  other  modes  employed  to  ef- 
fect it. 

Art.  527.  The  "act,"  intended  by  that  term,  in  the  last  four  preced- 
ing articles,  means  the  act  in  the  performance  of  which  the  homicide 
takes  place. 

Art.  528.  The  "  due  precaution,"  mentioned  in  the  description  of  this 
offence,  is  such  as  a  prudent  man  would  deem  effectual  to  prevent  the 
danger. 

Art.  529.  It  is  no  justification  for  omitting  such  necessary  precaution 
as  is  above  described,  that  time  or  other  circumstances  did  not  permit 
them  to  be  taken,  but  that  the  party  did  every  thing  else  in  his  power 
to  avoid  the  homicide.  In  such  case  the  act  itself,  in  the  doing  of 
which  the  death  happened,  ought  to  be  omitted,  unless  it  be  one  of 
those  acts  which  are  necessary  for  such  defence  of  person  or  property 
as  renders  homicide  justifiable  ;  in  which  case,  the  best  precaution  that 
circumstances  permitted,  is  sufficient. 

1st  Example.  Of  the  crime  generally.  If  one  prove  a  cannon  in  a 
public  road,  and  it  burst  and  kill  a  passenger,  it  amounts  to  this  offence, 
whether  the  passenger  had  notice  of  the  intended  explosion  or  not;  for 
no  one  has  a  right  to  stop  the  passage  of  a  highway,  for  the  purpose  of 
doing  an  act  that  ought  to  be  done  elsewhere. 

But  if  the  operation  were  performing  in  a  proper  place,  and  one  who 
had  notice  chose  to  remain,  and  is  killed,  it  is  no  offence,  for  due  cau- 
tion has  been  used. 

If  an  act  that  cannot  be  done  but  in  a  public  place,  such  as  pulling  down 
a  house,  cause  the  death  of  a  passenger,  who  perseveres  in  passing  after 
due  notice,  it  is  no  offence.  If  no  notice  be  given,  the  killing  in  this 
case  is  negligent  homicide  in  the  second  grade. 

2d  Example.  Of  the  "circumstances"  which  give  the  character  of 
apparent  risk. 

The  common  case  of  a  workman  throwing  materials  from  the  roof 
of  a  house  exemplifies  this  part  of  the  definition.  The  criminality  of 
the  homicide  there  depends  on  the  circumstance  of  the  PLACE  in  which 
the  act  is  done;  if  in  the  country,  or  other  unfrequented  place,  without 
previous  inquiry  and  examination  whether  any  one  be  in  the  way,  it  is 
ranked  in  the  first  grade  of  this  offence  ;  if  in  the  streets  of  a  populous 
city,  without  the  precautions  required  by  this  code,  or  by  the  police  of 
the  city,  it  is  a  negligent  homicide  in  the  second  grade;  if  in  either  place, 


CODE  OF  CRIMES  AND  PUNISHMENTS.  447 

with  the  caution  required  under  the  circumstances  of  the  respective 
cases,  it  is  no  offence. 

3d  Example.    Of  the  apparent  risk,  as  applied  to  the  MANNER. 

It  is  lawful  for  a  master  to  correct  his  apprentice  by  ordinary  means; 
yet  if  such  correction  be  repeated  or  continued  in  a  manner  apparently 
cruel  or  dangerous,  and  it  causes  death,  although  no  improper  instru- 
ment be  used,  it  comes  within  the  definition  of  this  offence. 

4th  Example.    Of  risk  apparent  from  the  MEANS  used. 

If  death  is  caused  by  the  employment  of  deadly  weapons,  or  using 
greater  force  than  is  necessary  to  repel  the  attack  of  an  unarmed  man 
upon  person  or  property,  the  risk  of  death  is  apparent,  and  the  party 
inflicting  it  is  guilty  of  this  offence. 

Art.  530.  In  all  the  examples  of  the  different  kinds  of  offences  desig- 
nated as  negligent  homicide,  it  is  understood,  as  an  essential  part  of  such 
case,  that  there  is  no  intent  to  kill,  and  in  all  (except  the  example  taken 
from  the  law  of  self  defence)  that  there  was  no  design  to  do  a  bodily 
harm. 

§4. 
Of  negligent  homicide  in  the  performance  of  unlawful  acts. 

Art.  531.  All  the  definitions,  rules,  and  provisions,  with  respect  to 
negligent  homicide  in  the  first  and  second  grades,  except  those  which 
regard  the  legality  of  the  act,  in  the  doing  or  attempt  to  do  which  the 
homicide  is  committed,  apply  to  the  homicides  described  in  this  divi- 
sion of  the  offence,  in  all  things  in  which  they  are  not  contrary  to  the 
following  provisions. 

Art.  532.  Where  negligent  homicide  in  the  second  grade  has  been 
committed,  in  the  doing  or  the  attempt  to  do  an  act  which  is  an  injury, 
but  not  an  offence,  one-fifth  shall  be  added  to  the  punishment.  If  the 
act  done  or  attempted,  be  a  misdemeanor,  but  not  an  offence  against  the 
person,  one-fourth  shall  be  added.  If  it  be  one  of  those  designated  as 
an  offence  against  the  person,  but  not  one  of  those  offences  designated  as 
murder,  one-half  shall  be  added.  If  it  be  a  crime  punishable  with  im- 
prisonment at  hard  labour  for  any  term  less  than  life,  the  punishment 
shall  be  doubled,  and  the  imprisonment  shall  be  at  hard  labour.  And 
if  the  act  done  or  attempted  to  be  done,  be  a  crime  punishable  with 
imprisonment  for  life,  the  homicide  shall  be  punished  by  imprisonment 
at  hard  labour  for  life. 

Art.  533.  It  is  intended,  by  the  preceding  article,  that  the  homicide 
must  have  been  done  in  the  attempt  to  offer  the  injury  or  commit  the 
offences  therein  specified,  that  is  to  say,  must  have  been  the  conse- 
quence of  some  act  done  for  the  purpose  of  pffering  or  committing 
such  other  injury  or  offence.  If  the  act  which  caused  the  death  had 
no  connexion  with  the  injury  intended  to  be  offered  or  committed,  it 
does  not  come  within  the  definition.  The  same  rule  of  construction 
applies  to  the  words,  "  in  the  doing  or  in  the  attempt  to  do,"  whenever 
they  are  used  as  giving  a  character  to  any  act  actually  done. 


448  CODE  OF  CRIMES  AND  PUNISHMENTS. 


§5. 
Of  criminal  voluntary  homicide. 

Art.  534.  Voluntary  homicide  is  a  CRIME  in  all  cases,  where  it  is 
neither  justifiable  nor  excusable,  according  to  the  rules  heretofore  laid 
down.  There  are  two  degrees  of  this  species  of  homicide,  each  degree 
forming  a  distinct  class  of  crime.  They  are, 

1.  Manslaughter. 

2.  Murder. 

Art.  535.  Manslaughter  is  voluntary  homicide,  committed  under  the 
immediate  influence  of  sudden  passion,  arising  from  an  adequate  cause. 

In  considering  and  applying  this  definition,  the  following  rules  are 
to  be  observed. 

1.  To  constitute  manslaughter,  the  homicide  must  be  intentional. 
Those  involuntary  homicides,  occasioned  by  want  of  due  care,  or  oc- 
curring in  the  prosecution  of  some  unlawful  act,  which  were  heretofore 
distinguished  by  this  name,  are  in  this  code  distinct  offences. 

2.  Manslaughter  is  homicide  committed  under  the  immediate  influ- 
ence of  sudden  passion;  all  the  terms  of  this  part  of  the  definition  are  to 
be  strictly  observed  in  its  application  to  any  particular  act.     If  the 
passion  be  not  sudden,  that  is  to  say,  arising  in  the  same  interview  in 
which  the  act  was  committed,  but  entertained  before  that  time  ;  or  if 
thus  arising,  and  the  act  be  not  done  under  the  immediate  influence  of 
that  passion,  but  after  such  an  interval  of  time  as  in  the  common  course 
of  human  feelings  would  give  time  for  reflection,  or  with  the  interven- 
tion of  such  circumstances  as  must  naturally  produce  it :  in  either  of 
these  cases  the  crime  is  not  manslaughter.     That  the  act  be  done  "  un- 
der the  influence"  of  such  passion,  is  also  a  necessary  part  of  the  de- 
finition.    This  means,  that  the  passion  is  the  cause  of  the  act ;  not 
merely  that  it  is  done  during  the  time  that  the  mind  is  agitated  by 
passion;  from  which  it  follows,  that  passion  against  one  will  not  qualify 
the  homicide  of  another  with  the  appellation  of  manslaughter. 

3.  The  passion  intended  by  the  above  definition,  includes  all  those 
called  choler,  rage,  anger,  sudden  resentment,  terror  or  fear;  their  great 
characteristic  being  a  sudden  and  temporary  agitation  of  the  mind,  that 
renders  it  incapable  of  cool  reflection  during  the  prevalence  of  this 
passion. 

4.  It  is  not  sufficient  that  the  act  be  committed  under  the  influence 
of  passion,  to  give  to  homicide  the  character  of  manslaughter  :  the  pass- 
ion must  have  an  adequate  cause.     The  law  admits  only  such  as  ade- 
quate causes,  which  it  defines  as  such. 

The  cause,  to  be  adequate,  must  be  one  that  in  men  of  ordinary 
tempers,  commonly  produces  an  irritation  of  mind  which  renders  them 
incapable  of  calculating  the  consequences  of  their  acts.  No  words 
whatever  are  an  adequate  cause;  no  gestures,  merely  showing  derision 
or  contempt.  » 

No  assault  and  battery,  so  slight  as  to  show  that  the  intent  was  not 
to  inflict  great  bodily  pain. 

An  assault  and  battery  made  by  the  deceased,  causing  great  pain  or 
bloodshed,  is  an  adequate  cause. 

A  serious  personal  conflict,  in  which  great  bodily  pain  was  inflicted 
by  means  of  a  weapon  or  other  instrument,  used  by  the  person  killed, 


CODE  OF  CRIMES  AND  PUNISHMENTS.  449 

or  by  means  of  a  great  superiority  of  personal  strength  or  skill,  is  an 
adequate  cause,  even  if  the  person  guilty  of  the  homicide  were  the  ag- 
gressor in  such  conflict,  or  in  any  manner  provoked  the  contest,  pro- 
vided such  aggression  or  provocation  was  not  made  with  the  intent  to 
bring  on  a  conflict  for  the  purpose  of  killing. 

A  discovery  of  the  wife  of  the  accused,  in  the  act  of  adultery  with  the 
person  killed,  is  an  adequate  cause. 

Passion,  occasioned  by  lawful  correction  of  the  person  accused,  is  not 
an  adequate  cause. 

Provocation  given  by  a  relation  in  the  ascending  line  to  his  descend- 
ant, is  not  an  adequate  cause;  although  it  would  have  been  such,  if  given 
by  a  person  not  standing  in  the  same  relation.    This  does  not  extend  ' 
to  relations  by  affinity  only. 

Injury  to  property,  unaccompanied  by  violence,  is  not  an  adequate 
cause. 

Passion  occasioned  by  the  legal  performance  of  duty  by  an  officer  of 
justice,  or  other  person  legally  authorized  to  perform  any  executive 
duty  of  justice,  is  not  an  adequate  cause. 

Art.  536.  Manslaughter  is  punished  by  imprisonment  not  less  than 
one  nor  more  than  five  years,  at  hard  labour  or  in  close  confinement. 

§6. 
Of  murder. 

Art.  537.  Murder  is  homicide,  inflicted  with  a  premeditated  design, 
unaccompanied  by  any  of  the  circumstances,  which,  according  to  the 
previous  provision  of  this  chapter,  do  not  justify,  excuse  or  bring  it 
within  some  one  of  the  descriptions  of  homicide  hereinbefore  defined. 

Art.  538.  There  are  different  grades  of  guilt  in  the  commission  of 
this  crime,  which  are  called, 
Infanticide, 
Assassination, 
Murder  under  trust, 
Parricide. 

Art.  539.  Infanticide  is  the  murder  of  an  infant  for  the  purpose  of 
concealing  its  birth. 

Art.  540.  Murder  is  characterized  as  assassination,  either  by  the  pur- 
pose intended  to  be  obtained,  by  the  means  used  to  effect  it,  or  by  the 
condition  of  the  person  murdered. 

1.  By  the,  purpose. 

When  the  murder  is  committed  for  the  purpose  of  effecting  another 
crime. 

When  it  is  committed  for  the  purpose  of  concealing  another  crime 
previously  committed. 

When  it  is  committed  for  the  purpose  of  obtaining  an  inheritance. 

When  it  is  committed  for  HIRE  ;  and  in  this  case,  he  who  gives  and 
he  who  receives  the  reward  is  guilty  of  assassination. 

2.  By  the  means  used. 

When  the  murder  is  done  by  LYING  IN  WAIT;  by  burning  the  house 
in  which  the  person  murdered  is;  by  POISON. 
3  G 


450  CODE  OF  CRIMES  AND  PUNISHMENTS. 

3.   By  the  condition  of  the  person  murdered. 

When  the  crime  is  committed  on  a  woman,  a  man  above  the  age  of 
seventy,  a  minor  under  the  age  of  sixteen,  a  person  asleep,  or  in  a  dwell- 
ing-house by  night,  or  travelling  on  the  high  road. 

Art.  541.  Murder,  under  trust,  is  that  which  is  committed  by  persons 
under  the  following  relations  to  the  person  murdered,  that  is  to  say  : 
husband,  wife,  tutor  or  curator,  ward,  collateral  relation  within  the 
second  degree  inclusive,  master,  servant,  schoolmaster,  host,  guest,  phy- 
sician or  surgeon  ;  and  finally,  if  the  murder  be  committed  by  one 
upon  another,  who  has  reposed  confidence  of  safety  in  him,  on  an  ex- 
press or  implied  promise  of  fidelity  or  protection.  Murder,  committed 
by  a  guide  or  conductor  on  the  land,  or  by  the  master  of  a  vessel  by 
water,  upon  a  traveller,  whom  he  has  undertaken  to  conduct,  are  ex- 
amples of  this  last  description  of  murder  under  trust. 

Art.  542.  Illegitimate  children  of  the  same  mother,  and  of  the  same 
father  by  another  mother,  if  acknowledged  by  the  father,  are  compre- 
hended in  the  above  description  of  collateral  relations. 

Art.  543.  The  word  "host,"  includes  as  well  the  gratuitous  receiver 
of  the  guest,  as  the  one  who  receives  him  for  hire. 

Art.  544.  Parricide  is  murder  committed  by  a  relation  by  consan- 
guinity, in  the  ascending  line  upon  his  descendant,  or  by  a  descendant 
upon  his  relation  by  consanguinity,  in  the  ascending  line. 

Art.  5-15.  Illegitimate  children,  and  such  of  their  parents  as  have  ac- 
knowledged them,  are  included  in  the  above  definition. 

Art.  546.  Punishment  for  murder  is  imprisonment  for  life. 

Each  of  the  aggravated  species  of  murder  described  in  this  section, 
has  appropriate  privations  and  aggravations  of  discipline  allotted  to  it 
in  the  Code  of  Reform  and  Prison  Discipline. 

Art  547.  An  attempt  to  murder,  by  administering  poison,  although 
it  fail  in  its  effects,  shall  be  punished  by  imprisonment  at  hard  labour, 
for  fifteen  years. 


SECTION  VIII. 


Of  suicide. 

Art.  548.  No  punishment  can  be  inflicted  on  him  who  commits  this 
act;  and  by  the  principles  on  which  this  system  is  founded,  the  law 
cannot  make  an  innocent  survivor  suffer  for  the  rashness  of  another. 
But  any  one  who  shall  aid  in  the  act  of  suicide,  or  who  shall  provide 
the  means  of  executing  it,  knowing  the  purpose  for  which  they  were 
intended,  or  be  guilty  of  any  omission  with  respect  to  the  act  or  means 
of  suicide,  that  constitutes  homicide  by  omission,  according  to  any  of 
the  preceding  provisions  of  this  chapter,  shall  be  imprisoned,  at  hard 
labour,  not  less  than  three  nor  more  than  six  years. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  451 


CHAPTER  VI. 


Of  duels. 

Art.  549.  If  any  person  shall  use  any  insulting  words  or  gestures  of 
or  to,  or  make  an  assault  upon  another  with  intent,  either  to  provoke 
any  one  to  give  a  challenge  to  FIGHT  A  DUEL,  or  as  an  alternative,  to 
dishonour  him,  he  shall  be  fined  not  less  than  fifty,  nor  more  than  three 
hundred  dollars,  or  imprisoned  not  less  than  five,  nor  more  than  thirty 
days,  in  close  custody. 

Art.  550.  If  the  defendant,  in  any  prosecution  under  the  last  preced- 
ing article,  shall  make  any  denial,  explanation,  or  acknowledgment, 
that  the  court  shall  think  ought  to  satisfy  the  honour  of  the  prosecutor, 
they  shall  direct  the  same  to  be  recorded  and  published,  with  their 
judgment  declaring  the  same  to  be  satisfactory  ;  and  may,  at  their  dis- 
cretion, direct  the  defendant  to  be  dismissed,  on  the  payment  of  costs. 

Art.  551.  Whenever  judgment  shall  be  pronounced  on,  for  anyx)ffence 
under  the  said  article,  it  shall  contain  a  clause  that  it  shall  be  void  as 
to  every  thing  but  costs,  in  case  the  defendant  shall  make  such  ac- 
knowledgment as  shall  be  satisfactory  to  the  prosecutor. 

Art.  552.  No  conviction  on  judgment  for  any  offence  under  the  said 
article,  shall  be  a  bar  to  any  prosecution  or  suit  for  defamation  or  assault 
for  the  same  cause,  unless  the  satisfaction  made  by  the  defendant  shall 
be  accepted,  as  is  provided  in  the  last  preceding  article. 

Art.  553.  In  case  any  offence  under  the  said  article  should  imply  a 
charge  affecting  the  honour  or  reputation  of  the  person  making  the  com- 
plaint, and  the  investigation  on  the  trial  show  such  charge  to  be  un- 
founded, the  court  shall  make  that  declaration  in  the  sentence,  and 
cause  the  same  to  be  published  at  the  expense  of  the  defendant ;  and  if 
the  party  complaining  request  it,  the  question,  whether  the  charge  be 
true  or  false,  shall  be  decided  by  the  jury. 

Art.  554.  Whoever  shall  give  a  challenge  to  fight  a  duel,  or  shall,  on 
receiving  such  challenge,  ACCEPT  the  same,  shall  be  imprisoned,  in 
close  custody,  not  less  than  two,  nor  more  than  six  months,  and  be 
suspended  from  his  political  rights  for  four  years. 

Art.  555.  Whoever  shall  fight  a  duel,  if  he  in  such  fight  inflicts  no 
wound,  shall  be  imprisoned,  in  close  custody,  not  less  than  six,  nor 
more  than  twelve  months,  and  shall  be  suspended  from  -his  political 
rights  for  six  years.  If  he  wound  his  adversary,  and  such  wound  do 
not  occasion  death,  or  any  permanent  bodily  disability,  the  imprison- 
ment shall  not  be  less  than  twelve,  nor  more  than  eighteen  months, 
and  the  suspension  for  eight  years.  If  he  fight  a  duel,  and  shall  inflict 
a  wound  on  his  adversary  that  causes  a  permanent  disability,  he  shall 
be  imprisoned  not  less  than  twelve  months,  and  be  suspended  from  the 
exercise  of  his  political  rights,  and  his  civil  rights  of  the  first  and  third 
class,  for  seven  years.  If  in  such  fight  he  kill,  or  inflict  a  mortal  wound 
on  his  adversary,  he  shall  be  imprisoned  not  less  than  two,  nor  more 
than  four  years,  and  forfeit  for  ever  his  political  rights,  and  his  civil 
rights  of  the  first  and  third  class.  And  if  such  death  or  mortal  wound 


452  CODE  OF  CRIMES  AND  PUNISHMENTS. 

he  inflicted  by  treachery,  he  shall  be  deemed  guilty  of  murder  by  assas- 
sination, and  suffer  the  punishment  in  this  code  directed  to  be  inflicted 
on  those  convicted  of  that  crime. 

Art.  556.  If  any  one  shall  advise  another  to  fight  a  duel,  or  shall  use 
any  reproachful  or  contemptuous  language  to  or  concerning  any  one  for 
not  sending  or  accepting  a  challenge,  or  for  not  fighting  a  duel,  he  shall 
be  fined  not  less  than  fifty,  nor  more  than  five  hundred  dollars,  or  be 
imprisoned  not  less  than  thirty  days,  nor  more  than  six  months. 

Art.  557.  If  any  one  shall  bear  a  challenge,  either  written  or  verbal 
to  another,  knowing  the  intent  with  which  it  was  sent,  he  shall  be  fined 
not  less  than  one  hundred,  nor  more  than  one  thousand  dollars,  be  im- 
prisoned, in  close  custody,  not  less  than  two,  nor  more  than  six  months, 
and  suspended  from  his  political  rights  for  three  years. 

Art.  558.  If  a  challenge  shall  be  given  and  accepted  in  this  state, 
and  the  parties  go  out  of  the  state  and  fight  a  duel,  the  punishment  for 
giving  or  accepting  such  challenge,  shall  be  the  same  as  if  the  whole 
offence  were  committed  within  the  state. 

Art.  559.  It  is  an  offence  within  the  meaning  of  the  first  article  of 
this  chapter,  if  the  insulting  words  or  gestures  be  used  relative  to,  or 
the  assault  be  committed  upon,  either  the  person  whom  it  is  intended 
to  provoke,  or  any  other  so  nearly  connected  with  or  related  to  him  as 
to  show  the  intent  in  the  said  article  expressed. 

The  dishonour,  in  the  same  article,  means  a  loss  of  the  esteem  of 
those  who  think  that  offences  of  that  nature  ought  to  be  avenged  by  a 
challenge  to  fight  a  duel. 

Art.  560.  The  words  "to  fight  a  duel,"  in  this  chapter,  are  used  in 
their  common  and  general  acceptation  :  they  mean,  to  enter  into  a  vo- 
luntary combat,  one  man  against  another,  with  deadly  weapons. 

Art.  561.  A  challenge  is  any  proposal,  either  'verbal  or  written,  or 
by  message,  in  whatever  language  it  may  be  couched,  to  fight  a  duel, 
provided  that,  from  the  circumstances  attending  the  proposition,  it  ap- 
peared to  be  so  understood  by  the  party  accused  whether  he  be  the 
party  giving  or  the  party  accepting  it. 

Art.  562.  The  acceptance  of  a  challenge,  is  an  agreement  to  the  pro- 
position to  fight  a  duel,  either  given  by  express  words  or  by  other 
terms,  either  written  or  oral,  from  which  such  agreement  may  clearly 
be  inferred  on  by  circumstances  which  show  such  agreement. 

Art.  563.  It  is  treachery,  if  the  death  be  occasioned  by  the  breach  of 
any  rules  made  for  conducting  the  combat,  or  by  any  other  advantage, 
which,  although  not  expressly  provided  against  in  those  rules,  was  yet 
one  that  could  not  be  supposed  to  have  been  intended  to  be  given. 

Art.  564.  It  is  assassination,  if  the  mortal  wound  be  intentionally  in- 
flicted on  a  party,  after  he  is  incapable  of  further  resistance,  either 
from  being  disarmed,  or  any  other  circumstance,  with  a  knowledge  of 
such  incapacity  by  the  party  inflicting  it,  whether  it  be  done  in  pursu- 
ance of  any  previous  rule  for  the  combat  or  not. 

Art.  565.  It  is  assassination,  and  not  a  duel,  if  the  death  or  mortal 
wound  be  inflicted  by  a  party  who  has  obtained  the  power  of  inflicting 
it  without  risk  to  himself,  by  the  effect  of  a  chance  previously  agreed 
on.  Death  inflicted  by  a  party  who  has  obtained  a  loaded  pistol  by  a 
chance  agreed  on,  while  the  one  used  by  his  adversary  is  not  loaded,  is 
an  example  of  what  is  intended  by  this  rule. 

Art.  566.  In  order  more  effectually  to  secure -the  execution  of  the  pro- 


CODE  OF  CRIMES  AND  PUNISHMENTS.  453 

visions  of  this  chapter,  the  attorney  general  and  district  attorneys  of 
this  state,  and  all  officers  of  justice  when  they  are  sworn  into  office, 
and  such  of  them  as  are  in  office  at  the  time  of  the  promulgation  of 
this  code,  or  within  fifteen  days  afterwards,  and  all  grand  jurors  when 
they  are  sworn,  shall  sign  a  declaration  in  the  following  form  : — "I 
declare,  that  I  consider  the  obligation,  which  my  duty  requires,  of  bring- 
ing to  justice  all  offenders  against  the  laws,  as  containing  no  reservation 
with  respect  to  duels.  And  I  promise  on  my  honour  that  I  will,  within 
the  local  bounds  to  which  my  official  functions  extend,  by  all  lawful 
means  prevent  so  far  as  shall  be  in  my  power,  any  duel  which  I  may 
have  reason  to  suppose  is  intended,  and  prosecute  all  offences  which 
come  to  my  knowledge,  against  the  sixth  chapter  of  the  nineteenth 
title  of  the  second  book  of  the  Code  of  Crimes  and  Punishments  of  this 
state,  entitled,  «  Of  Duels.'  " 

The  word  "prosecute,"  in  the  said  declaration,  shall,  in  the  case  of 
grand  jurors,  be  changed  for  "indict;"  and  in  the  case  of  officers  of 
justice,  it  shall  be  changed  for  the  words  "  enter  complaint  against." 

Art.  567.  And  all  officers,  civil  or  military,  judicial  or  executive, 
now  in  office,  shall,  within  thirty  days  after  the  promulgation  of  this 
code,  if  in  office  at  that  time,  and  those  appointed  or  elected  afterwards, 
shall,  at  the  time  they  take  their  oath  of  office,  and  before  they  enter 
on  the  duties  of  their  office,  take  before  a  magistrate,  and  subscribe 
a  declaration,  under  oath,  in  the  following  form  : — "I  do  solemnly 
swear,  that  I  have  not  fought  a  duel,  or  given  or  accepted  a  challenge  to 
fight  a  duel,  since  the  promulgation  of  the  Code  of  Crimes  and  Punish- 
ments of  the  state  of  Louisiana  ;  and  that  I  shall  hereafter  consider 
myself  as  bound  by  the  ties  of  honour,  as  well  as  the  sanction  of  this 
oath  and  of  the  laws,  not  to  commit  any  offence  against  the  provisions 
of  the  sixth  chapter  of  the  nineteenth  title  of  the  second  book  of  the 
said  code,  entitled,  <  Of  Duels.3 "  And  every  person  elected  or  chosen 
to  any  office,  who  shall  refuse  or  neglect  to  take  such  oath  and  sub- 
scribe such  declaration,  within  the  period  and  at  the  time  above  direct- 
ed, and  to  send  the  same  to  the  office  of  the  secretary  of  state,  as  is 
directed  in  the  next  article,  shall  be  considered  as  having  resigned  or 
refused  to  except  the  office  to  which  he  is  elected. 

Art.  568.  As  to  all  officers  appointed  or  elected,  the  oath  and  declar- 
ation aforesaid  shall  be  taken  and  subscribed  before  the  magistrate  who 
administers  the  oath  of  office,  and  shall  be  deposited,  recorded  and 
transmitted,  as  is  by  law  directed  concerning  oaths  of  office.  And  as 
to  all  officers  in  office  at  the  time  of  the  promulgation  of  this  code,  the 
oath  shall  be  taken  before  any  magistrate,  and  deposited,  recorded  and 
transmitted,  as  is  now  by  law  directed  with  respect  to  oaths  of  office. 


TITLE  XX. 


OF    OFFENCES    AFFECTING    INDIVIDUALS    IN   THEIR   PROFESSION    OR   TRADE. 

Art.  569.  All  direct  offencesof  this  nature  are  comprehended  in  the 
twelfth  and  eighteenth  titles,  and  the  chapter  "Of  Conspiracies,"  and 
those  having  the  same  effect  indirectly,  in  other  titles  of  this  book. 


454  CODE  OF  CRIMES  AND  PUNISHMENTS. 


TITLE  XXI. 


OF  OFFENCES  AGAINST  CIVIL  AND  POLITICAL  RIGHTS  AND  CONDITIONS. 


CHAPTER  I. 


Of  the  substitution)  exposure  of  infants,  and  of  falsifying  registers. 

Art.  570.  If  any  person  to  whom  an  infant,  under  the  age  of  six  years, 
shall  be  confided  for  nursing,  education,  or  other  purpose,  shall,  with 
intent  to  deceive  the  parents,  tutors,  or  curators  of  such  infant,  substi- 
tute, or  attempt  to  substitute  another  child  in  the  place  of  the  one  so 
confided,  he  shall  be  imprisoned  at  hard  labour  not  less  than  three  nor 
more  than  seven  years. 

Art.  571.  The  word  substitute  in  this  chapter  means,  to  deliver  to 
the  person  confiding  the  child,  another  instead  of  the  one  so  confided, 
under  the  pretence  that  it  is  the  same. 

Art.  572.  If  any  one,  to  whom  such  a  child  shall  be  so  confided,  or 
its  father  or  mother,  shall  expose  or  desert  such  child,  with  intent 
wholly  to  abandon  it,  in  a  place  where  its  life  will  be  endangered,  the 
punishment  shall  be  imprisonment  at  hard  labour  not  less  than  five  nor 
more  than  ten  years. 

Art.  573.  But  if  such  abandonment  be  made  without  the  knowledge 
of  the  father,  mother,  tutor  or  curator  of  the  child,  by  the  person  to 
whom  it  shall  have  been  confided,  by  fraudulently  depositing  it  in  an 
inhabited  house,  one  half  of  the  punishment,  mentioned  in  the  last 
article,  shall  be  inflicted. 

Art.  574.  If  such  child  shall  die  in  consequence  of  such  exposure,  it 
is  infanticide,  murder,  or  murder  under  trust,  depending  on  the  person 
who  commits  the  crime.  If  it  receive  any  other  bodily  injury,  the 
offence  shall  be  punished  in  the  same  manner  as  the  same  injury  would 
be,  had  it  been  done  with  intent  to  kill. 

Art.  575.  If  any  one  shall,  for  the  purpose  of  intercepting  an  inheri- 
tance in  the  whole  or  in  part,  fraudulently  produce  an  infant,  false- 
ly pretending  it  to  be  born  of  parents,  whose  child  would  stand  in  the 
order  of  successsion  to  such  inheritance  before  or  equally  with  another 
person,  whose  condition  and  civil  rights  it  was  intended  to  intercept, 
the  persons  so  offending,  and  those  who  shall  aid  and  assist.in  the  de- 
ception, shall  be  imprisoned  in  close  custody  not  less  than  six  nor  more 
than  twelve  months,  and  shall  be  suspended  from  the  exercise  of  their 
civil  rights  of  the  first  and  third  class  for  five  years. 

If  any  one  shall,  for  the  purpose  of  injuring  another  in  his  civil  or 
political  rights,  or  in  his  right  to  property,  destroy,  or  alter  any  cer- 
tificate of  birth,  or  marriage,  or  burial,  he  shall  be  imprisoned  not  less 
than  seven  nor  more  than  fifteen  years  at  hard  labour,  and  shall  forfeit 
his  political  rights. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  455 

If  any  person,  whose  duty  it  is,  by  law,  to  make  a  record  of  births, 
marriages,  or  deaths  ;  or  any  curate,  priest,  minister,  or  parson,  who 
in  any  church  or  religious  congregation,  is  charged  with  keeping  a 
register  of  births,  marriages,  or  funerals,  celebrated  for  the  members  of 
such  church  or  religious  congregation,  shall  fraudulently  make  a  false 
entry  in  such  record  or  register  of  any  such  birth,  marriage,  death,  or 
funeral,  with  intent  to  injure  any  one  in  his  condition,  civil  or  political 
rights,  or  his  right  to  property,  he  shall  be  imprisoned  at  hard  labour 
not  less  than  seven  nor  more  than  fifteen  years. 

Art.  576.  Other  offences  affecting  political  rights  will  be  found  in 
the  title  of  offences  against  the  right  of  suffrage. 


CHAPTER  II. 


Of  bigamy. 

Art.  577.  A  person  having  a  wife  or  husband  living,  who  shall, 
without  having  a  reasonable  cause  to  believe  such  wife  or  husband  to  be 
dead,  contract  a  second  marriage,  is  guilty  of  bigamy,  and  shall  be  im- 
prisoned at  hard  labour  not  less  than  one,  nor  more  than  five  years. 

Art.  578.  If  the  first  wife  or  husband  had,  at  the  time  of  the  sub- 
sequent marriage,  been  absent  for  five  years,  and  during  that  time  the 
accused  had  not  received  any  intelligence  of  his  or  her  being  alive,  this 
shall,  for  the  purposes  of  this  chapter,  be  considered  such  a  reasonable 
belief  of  death,  as  to  take  away  all  criminality  from  the  act. 

Art.  579.  What  other  cause  to  believe  the  death  of  the  former  hus- 
band or  wife  shall  be  deemed  a  reasonable  cause,  is  matter  of  fact,  to 
be  decided  according  to  the  circumstances  of  the  case. 

Art.  580.  It  is  not  necessary,  to  constitute  this  offence,  that  the  first 
marriage  should  have  been  contracted  within  this  state  ;  but  it  must, 
wherever  celebrated,  have  been  a  valid  marriage,  according  to  the 
laws  of  the  country  in  which  it  was  contracted. 

Art.  581.  The  subsequent  marriage  must  also  be  made  according  to 
the  forms  prescribed  by  law  to  give  validity  to  marriages  in  this  state. 

Art.  582.  If  a  citizen  of  this  state,  residing  therein,  having  a  hus- 
band or  wife  living,  either  here  or  elsewhere,  shall  go  out  of  this  state, 
and  contract  a  second  marriage,  with  the  intent  of  returning  to  reside 
within  this  state,  and  shall  so  return — he  or  she  shall  be  deemed  guilty 
of  the  crime  of  bigamy. 

Art.  583.  If  the  first  marriage  be  not  null  in  itself,  but  only  void- 
able, a  second  marriage,  during  the  lives  of  the  parties  to  the  first,  is 
bigamy  ;  unless  such  first  marriage  had  been  declared  void  by  a  com- 
petent authority,  or  had  become  so  by  the  operation  of  law  or  the  act 
of  the  party,  before  the  time  of  contracting  the  second  marriage. 

Art.  584.  No  other  divorce  but  one,  from  the  bonds  of  matrimony, 
is  such  a  dissolution  of  the  first  marriage  as  will  exempt  the  party  from 
the  guilt  of  bigamy  or  a  second  marriage,  while  both  parties  to  the  first 
are  living. 

Art.  585.  A  third  marriage,  during  the  lifetime  of  the  parties  to  the 
second,  is  bigamy,  although  the  second  marriage  was  contracted  during 


456  CODE  OF  CRIMES  AND  PUNISHMENTS. 

the  lifetime  of  the  parties  to  the  first,  and  in  a  manner  to  make  it  biga- 
my ;  and  in  case  of  three  or  more  successive  marriages,  any  of  the 
persons,  with  whom  the  party  accused,  contracted  either  of  the  former 
marriages,  being  alive,  at  the  time  of  celebrating  a  subsequent  one,  he 
or  she  may  be  convicted  of  bigamy. 


TITLE  XXII. 


OF  OFFENCES  AFFECTING  PERSONS  IN  THEIR  PROFESSION  OR  TRADE. 

THE  offences  coming  under  the  purview  of  this  title,  will  be  found 
in  the  titles,  "Of  offences  affecting  commerce  and  manufactures,"  and 
in  the  chapter  of  "  Conspiracies." 


TITLE  XXIII. 


OF  OFFENCES  AFFECTING  PRIVATE  PROPERTY. 


CHAPTER  I. 


'f  burning  and  other  malicious  injury  to  property. 

Art.  586.  If  any  one  shall  MALICIOUSLY  SET  FIRE  to  any  DWELLING- 
HOUSE,  with  intent  to  destroy  the  same;  or  shall  destroy  such  house  by 
an  explosion  of  gunpowder  or  any  other  explosive  matter,  he  shall  be 
imprisoned,  at  hard  labour,  during  life.  If  the  house  be  not  a  dwell- 
ing house,  but  contain  personal  property  of  the  value  of  one  hundred 
dollars,  he  shall  be  imprisoned,  in  like  manner,  not  less  than  seven 
nor  more  than  fourteen  years  :  and  if  it  be  empty,  or  contain  personal 
property  of  less  value  than  one  hundred  dollars,  the  punishment  shall 
be  a  like  imprisonment,  not  less  than  five  nor  more  than  ten  years. 

Art.  587.  A  house,  within  the  meaning  of  this  chapter,  is  any  edifice 
so  built  as  to  come  within  the  denomination  of  real  estate,  according 
to  the  definition  of  that  term  in  this  code,  being  closed  in  on  all  sides, 
and  having  the  area,  which  is  enclosed  by  its  sides,  covered  with  a  roof. 
This  definition  excludes  a  tent,  a  booth  or  an  open  shed. 

Art.  588.  A  dwelling-house  is  one  in  which  some  person  habitually 
sleeps  or  eats  his  meals,  or  one  that  is  built  and  intended  for  that  pur- 
pose, although  not  actually  inhabited. 

Art.  589.  This  offence  of  setting  fire  to  a  dwelling-house,  is  also 
committed  by  setting  fire  to  any  building  that  communicates,  by  any 
combustible  matter  with  the  inhabited  building,  or  that  is  so  near  to 
it  as,  if  the  one  burns,  to  cause  the  other  to  take  fire. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  457 

Art.  590.  If  any  one  shall,  in  like  manner  and  with  like  intent  as  is 
above  expressed,  set  fire  to  any  building,  not  coming  within  the  de- 
scription of  a  house,  or  to  any  stack  of  grain  or  hay,  any  heap  of  fire- 
wood, or  timber,  or  other  collection  of  combustible  produce  of  the  earth, 
standing  or  being  on  the  land  of  another,  and  of  the  value  of  ten  dollars 
or  upwards — he  shall  be  imprisoned  not  less  than  six  nor  more  than 
twelve  months,  or  fined  not  more  than  five  hundred  dollars,  or  both, 
at  the  discretion  of  the  court. 

Art  591.  The  intent  must  be  malicious  ;  therefore,  if  the  house  be 
the  property  of  the  person  who  does  the  act,  and  no  other  person  has 
any  interest  therein,  he  is  guilty  of  no  offence.  But  if  there  be  any 
other  person  interested  as  joint  owner,  usufructuary,  lessee,  or  in  any 
other  manner  whatever ;  or  if  another  have  an  incumbrance  on  the 
house,  or  have  made  insurance  thereon — the  offence  is  incurred, 
although  the  person  committing  the  act  may  have  some  estate  in  the 
house.  This  article  applies  to  all  the  offences  described  in  this  chapter. 

Art.  592.  If  one  set  fire  to  his  own  house,  with  the  intent  that  the  fire 
shall  communicate  to  that  of  another,  and  it  does  so  communicate — he 
is  guilty  of  this  offence. 

Art.  593.  The  offence  is  not  complete  merely  by  the  burning  of  the 
combustible  matter  placed  for  communicating  the  fire.  It  must  actually 
have  communicated  to  the  house  ;  but  it  is  not  necessary  for  this  pur- 
pose, that  it  should  be  completely  destroyed. 

Art.  594.  If  any  building  destroyed  by  fire,  contrary  to  the  pro- 
visions of  this  section,  contain  any  DOMESTIC  ANIMALS,  which  are 
destroyed  with  the  building — the  punishment  shall  be  increased  one- 
half. 

Art.  595.  If  any  one  shall,  designedly,  and  with  intent. to  injure, 
illegally  set  fire  to,  or  destroy  or  injure  by  explosion,  any  ship  or  other 
vessel,  boat,  flat-boat  or  raft,  which  with  the  cargo,  if  any  there  be,  is  of 
the  value  of  one  hundred  dollars  or  upwards — he  shall  be  imprisoned,  at 
hard  labour,  not  less  than  three  nor  more  than  seven  years. 

Art.  596.  The  "intent  to  injure,"  mentioned  in  the  articles  of  this 
section,  means  an  intent  to  cause  a  PECUNIARY  loss  to  some  person 
(other  than  the  offender)  having  an  interest  in  or  upon  the  property 
when  the  act  is  designedly  done.  The  circumstance  that  another  has 
an  interest  in  or  upon  it,  is  conclusive  proof  of  the  intent  to  injure. 

Art.  597.  Where  death  is  occasioned  by  any  of  the  offences  described 
in  this  section,  the  offender  is  guilty  of  murder;  and  of  assassination,  if 
he  intended  the  death  of  the  party. 

Art.  598.  If  any  bodily  injury,  less  than  death,  is  suffered  by  the 
fire  or  explosion,  in  the  execution  of  the  offence — the  punishment  shall 
be  doubled  in  all  cases  where  the  punishment  is  less  than  imprisonment 
for  life. 

Art.  599.  If  any  of  the  offences  described  in  this  section  be  com- 
mitted during  the  NIGHT,  the  punishment  shall  be  increased  one-half. 

Art.  600.  Whoever  shall  MALICIOUSLY  destroy  any  personal  property 
exclusively  belonging  to,  and  in  the  possession  of  another,  if  of  any  of 
the  kinds  hereinbefore  described,  by  any  other  means  than  by  fire,  or 
if  of  any  other  kind,  by  any  means  whatever,  being  of  the  value  of  ten 
dollars  or  more  ;  or  in  like  manner  injure  it  to  that  amount,  he  shall 
be  imprisoned  not  less  than  one  month,  nor  more  than  one  year,  or 
shall  be  fined  not  exceeding  five  hundred  dollars,  or  both,  and  the  im- 
3  H 


458  CODE  OF  CRIMES  AND  PUNISHMENTS. 

prisonment  or  part  of  it  may  be  in  close  custody.  If  the  offence  de- 
scribed in  this  article  be  committed  by  poisoning,  killing  or  disabling 
any  animal  of  any  kind  usually  employed  in  husbandry,  or  raised  for 
sale,  the  punishment  shall  be  doubled,  but  shall  not  be  less  than  impri- 
sonment for  thirty  days  in  close  custody,  or  a  fine  of  two  hundred  and 
fifty  dollars. 

Art.  601.  If  any  one  shall  MALICIOUSLY  destroy  the  fences  or  en- 
closures of  any  real  property  belonging  exclusively  to  another,  and  in 
his  separate  possession,  or  shall  destroy  any  trees,  shrubs  or  any  CROP 
of  any  kind  growing  thereon,  if  the  fences  or  other  things  so  destroyed 
are  of  the  value  of  ten  dollars  or  upwards,  he  shall  be  imprisoned  not 
more  than  one  year,  or  fined  not  exceeding  five  hundred  dollars,  or 
both  ;  and  the  imprisonment,  or  any  part  thereof,  may  be  in  close 
custody. 

Art.  602.  If  any  one  shall  MALICIOUSLY  destroy  any  original  written 
obligations  or  original  acts,  giving  an  interest  in,  or  a  right  to  any  real 
or  personal  property,  of  the  value  of  one  hundred  dollars,  belonging  to 
another,  or  shall  in  like  manner  destroy  the  copy  of  any  such  obligation 
or  act,  when  by  reason  of  the  destruction  of  the  original  or  other  legal 
cause,  such  copy  is  the  only  proof  of  the  obligation  or  act,  he  shall  be 
imprisoned  not  less  than  one  month,  nor  more  than  one  year,  or  be 
fined  not  less  than  fifty,  nor  more  than  one  thousand  dollars,  or  both, 
and  the  imprisonment  or  any  part  of  it  may  be  in  close  custody. 

Art.  603.  If  any  one  shall  maliciously  or  fraudulently  remove  or 
destroy  any  post,  stone,  tree,  or  other  thing  serving  as  a  land-mark  to 
designate  a  boundary  between  two  different  tracts  of  land,  he  shall  be 
imprisoned  at  hard  labour  not  less  than  one  nor  more  than  three  years, 
and  shall  forfeit  his  political  rights. 

Art.  604.  Injuries  to  property  by  negligence  are  not  the  object  of 
penal  law. 


CHAPTER  II. 


Of  house-breaking. 

Art.  605.  Whoever  enters  a  HOUSE  secretly,  or  by  force,  orthreats,or 
fraud,  during  the  NIGHT,  or  in  like  manner  enters  a  HOUSE  by  day,  and 
conceals  himself  therein  until  the  NIGHT,  with  the  INTENT  in  either  case 
of  committing  a  crime,  is  guilty  of  the  crime  of  house-breaking,  and 
shall  be  imprisoned  at  hard  labour  not  less  than  ten  nor  more  than  fif- 
teen years. 

Art.  606.  The  qualifications  of  secrecy,  force,  or  fraud,  as  applied 
to  the  entry,  in  the  description  of  this  offence,  are  intended  to  exclude 
every  kind  of  entry  but  one  made  by  the  free  consent  of  the  occupant, 
or  of  one  authorized  to  give  such  consent  for  him,  fairly  obtained  and 
expressly  or  impliedly  given. 

Art.  607.  Although  a  consent  be  given  to  an  entrance  into  one  part 
of  a  house,  yet  an  entrance  into  -any  other  part,  by  any  of  the  means 
and  with  the  intent  described  in  the  first  article  of  this  section,  con- 
stitutes the  crime  of  house-breaking. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  459 

f 

Art.  608.  The  term  "house,"  as  used  in  this  chapter,  comprehends 
all  such  as  are  built  for  public  as  well  as  private  use,  whether  the  pro- 
perty of  the  state,  the  United  States,  or  any  public  or  private  corpora- 
tion or  society. 

Art.  609.  The  entry,  in  the  description  of  this  offence,  is  not  confined 
to  the  entrance  of  the  whole  body  ;  the  introduction  of  any  part,  for 
the  purpose  of  committing  a  crime,  is  sufficient. 

Art.  610.  If  any  one  shall  discharge  any  fire-arms,  or  any  missile 
weapon,  into  a  house,  with  the  intent  of  doing  bodily  injury  to  any 
one  in  such  house,  or  introduce  any  instrument  for  the  purpose  of 
drawing  out  any  personal  property,  it  is  an  entry  intended  by  the  de- 
scription of  this  offence,  although  no  part  of  the  body  of  the  offender 
should  come  within  the  house. 


CHAPTER  III. 


Of  the  acquisition  or  appropriation  of  property  by  fraud  or  force. 

Art.  611.   Offences  of  this  nature  may  be  committed  in  the  follow- 
ing manner. 

1.  By  the  fraudulent  appropriation  of  personal  property,  which  had 
been  delivered  to  the  offender  for  another  purpose. 

2.  By  the  like  appropriation  of  property  which  came  to  the  possess- 
ion of  the  offender  by  finding. 

3.  By  the  violation  of  epistolary  correspondence. 

4.  By  obtaining  personal  property  under  false  pretences. 

5.  By  theft  or  robbery. 

6.  By  receiving  property  knowing  it  to  be  fraudulently  obtained. 


SECTION  I. 

Of  fraudulent  breach  of  trust. 

Art.  612.  The  following  are  the  acts  which  may  severally  constitute 
this  offence : 

1st.  The  fraudulent  appropriation  of  personal  property  by  any  one, 
to  whom  it  shall  have  been  delivered  on  deposite,  sequestration,  pledge, 
or  to  be  carried  or  repaired,  or  on  any  other  contract  or  trust,  by 
which  he  was  bound  to  deliver  or  return  the  thing  received. 

2d.  The  fraudulent  appropriation  of  certain  specific  personal  pro- 
perty by  any  one,  to  whom  it  shall  have  been  delivered  on  a  contract 
of  loan  for  use,  or  of  letting  and  hiring,  after  the  time  at  which,  accord- 
ing to  the  contract,  the  right  of  use  acquired  thereby  has  ceased,  or 
before  that  time,  by  a  disposition  not  authorized  by  such  contract. 

Art.  613.  These  two  cases  refer  to  a  receiving,  with  an  intent  to 
comply  with  the  contract  under  which  the  delivery  is  made,  and  a 
subsequent  determination  of  fraud ;  if  the  contract  be  intended  merely  as 


460  CODE  OF  CRIMES  AND  PUNISHMENTS. 

the  means  of  procuring  possession,  with  the  intent  of  making  a  fraudu- 
lent appropriation,  it  is  theft. 

Art.  614.  The  punishment  for  the  offences  described  in  the  first  arti- 
cle of  this  section,  is  imprisonment  in  close  custody,  not  exceeding 
six  months,  if  the  property  be  of  the  value  of  thirty  dollars  or  under  ; 
and  if  above  that  value,  the  like  imprisonment,  not  exceeding  one 
year. 

Art.  615.  The  giving  to  another  the  charge  or  care  of  property, 
subject  to  the  immediate  orders  of  the  owner,  or  the  use  of  it  in  his 
presence,  or  for  the  purposes  of  his  trade,  is  not  a  delivery  within  the 
meaning  of  any  articles  describing  this  offence.  A  fraudulent  appro- 
priation of  property  so  placed  is  theft. 


SECTION  II. 

Of  fraudulent  appropriation  of  property  found. 

Art.  616.  If  any  one  shall  come,  by  finding,  to  the  possession  of  any 
personal  property,  of  which  he  shall  know,  or  have  reason  to  believe 
any  DESIGNATED  person  to  be  the  owner,  and  shall  fraudulently  appro- 
priate the  same,  or  any  part  thereof,  he  shall  be  imprisoned  in  close 
custody,  not  less  than  sixty  days  nor  more  than  six  months,  and  shall 
be  fined  in  a  sum  equal  to  double  the  amount  of  the  property  so  appro- 
priated. 

Art.  617.  Where  property  has  been  casually  lost,  and  the  finder  has 
no  reason  to  believe  any  designated  person  to  be  the  owner  of  the  pro- 
perty found,  if  it  is  of  the  value  of  more  than  twenty  dollars,  and  the 
finder  shall  conceal  the  same,  and  appropriate  it  to  his  own  use,  he 
shall  be  fined  in  a  sum  equal  to  double  the  amount  of  the  property  ap- 
propriated. 

Art.  618.  If  the  property  be  found  in  a  place  where  property  of  the 
same  description  is  usually  placed,  or  suffered  to  be  ;  or  if  in  an  unu- 
sual place,  in  one  where  the  finder  knows  it  to  have  been  designedly 
put  by  the  owner  ;  or  if  the  property  be  domestic  animals,  and  they 
are  found  in  a  place  in  which  they  are  usually  kept,  or  to  which  they 
are  suffered  to  go,  or  may  reasonably  be  supposed  to  have  strayed,  this 
is  not  finding  within  the  meaning  of  the  preceding  articles  ;  and  if 
the  person  taking  the  property  fraudulently  appropriate  it,  he  is 
guilty  of  theft. 

Art.  619.  If  any  one  shall  fraudulently  appropriate  property,  taken 
or  driven  on  shore  from  any  vessel,  wrecked,  stranded  or  burned,  on 
the  sea-coast,  or  on  any  of  the  rivers,  lakes  or  harbours  of  this  state, 
he  shall  be  imprisoned,  at  hard  labour,  not  less  than  one  nor  more  than 
three  years. 

Art.  620.  The  property,  described  in  the  last  preceding  article,  shali 
be  presumed  to  be  fraudulently  appropriated,  within  the  meaning  of 
that  article,  in  all  cases  where  the  property  is  concealed  and  the  direc- 
tions contained  in  the  Code  of  Procedure,  on  the  subject  of  wrecked 
property,  are  not  pursued. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  461 


SECTION  III. 

Of  the  tiolation  of  epistolary  correspondence. 

Art.  621.  If  any  one  shall  open  and  read,  or  cause  to  be  read,  any 
sealed  letter,  without  being  authorized  so  to  do  either  by  the  writer  of 
such  letter  or  the  person  to  whom  it  is  addressed,  or  by  law — he  shall 
be  fined  not  more  than  fifty  dollars,  or  imprisoned  not  less  than  ten 
nor  more  than  thirty  days. 

Art.  622.  Whoever  shall  MALICIOUSLY  PUBLISH  OR  CIRCULATE  the 
whole  or  any  part  of  a  letter  so  opened,  knowing  the  manner  in  which 
it  was  obtained,  and  without  legal  authority — shall  be  fined  not  less 
than  fifty  nor  more  than  two  hundred  dollars,  or  imprisoned  not  less 
than  one  nor  more  than  three  months. 

Art.  623.  If  property  of  any  assignable  value  be  taken  from  such 
letter,  it  is  theft. 

Art.  624.  If  any  one  shall  TAKE  any  letter,  whether  sealed  or  not, 
or  any  writing  whatever,  from  the  legal  possession  of  another,  without 
his  consent,  and  shall  maliciously  publish  the  same — he  shall  be  fined 
not  less  than  one  hundred  nor  more  than  five  hundred  dollars,  or  im- 
prisoned not  less  than  one  nor  more  than  six  months. 


SECTION  IV. 

Of  obtaining  property  by  false  pretences. 

Art.  625.  If  any  one,  with  a  fraudulent  intent,  shall  obtain  any  per- 
sonal property,  or  the  release  of  any  right,  of  any  ASSIGNABLE  value, 
with  the  consent  of  the  owner  or  possessor  thereof,  by  means  of  any 
false  pretences,  without'the  use  of  which  such  consent  would  not  have 
been  given — he  is  guilty  of  this  offence. 

Art.  626.  No  mere  declaration  of  the  value,  or  cost,  or  quality,  or 
quantity  of  the  property  sold,  although  such  declaration  should  be  false: 
no  promise  of  a  consideration  for  the  delivery  of  personal  property, 
although  such  promise  be  not  performed  :  no  mere  declaration  that 
the  party  is  able  to  pay,  or  perform  or  deliver  the  consideration  :  is  a 
false  pretence  under  the  above  definition. 

Art.  627.  The  owner's  consent  to  the  delivery  of  the  property  is  an 
essential  part  of  the  definition  of  this  ofience,  and  a  characteristic  that 
distinguishes  it  from  theft.  A  temporary  possession  for  examination, 
or  any  other  purpose,  while  the  contract  for  the  transfer  is  pending, 
is  not  such  a  delivery,  by  consent,  as  is  required  by  the  description  of 
the  ofience.  And  if  the  fraudulent  appropriation  be  made  before  such 
final  consent  be  given,  it  is  theft. 

Art.  628.  This  consent  is  presumed  to  have  been  given,  whenever 
the  consideration  is  received,  and  the  property  is  left,  or  put  in  the 
power  of  the  person  to  whom  by  the  purport  of  the  contract  it  appears 
to  be  transferred,  although  such  consideration  should  prove  worthless 


462  CODE  OF  CRIMES  AND  PUNISHMENTS. 

or  fraudulent.  It  is  also  presumed  to  have  been  given  whenever  cre- 
dit has  been  given  for  the  price,  however  short  the  time. 

Art.  629.  Credit  is  presumed  to  have  been  given  when,  although  the 
sale  or  other  transfer  was  made  on  a  stipulation  of  paying  cash,  the 
seller  shall  have  taken  a  draft  or  order,  or  other  security  for  the  amount, 
and  voluntarily  left  the  property  in  the  hands  of  the  vendor. 

Art.  630.  It  is  a  false  pretence  for  any  one  to  assign  or  deliver  any 
written  contract  as  his  own  property,  when,  to  his  knowledge,  it  be- 
longs to  another  bearing  the  same  name. 

Art.  631.  It  is  a  false  pretence  to  assume  any  false  description,  which 
would,  if  true,  give  greater  credit  to  the  party  assuming  it.  By  "de- 
scription," is  meant  profession,  trade,  office  or  employment. 

Art.  632.  If  any  one  shall  commit  this  offence  by  falsely  personating 
another,  he  shall  incur  the  highest  punishment  designated  for  the  same. 

This  modification  of  the  offence  is  committed, 

1.  By  assuming  to  be  another,  whose  name  or  credit  shall  induce 
the  owner  to  deliver  the  property. 

2.  By  assuming  to  be  another  person  bearing  the  same  name  as  the 
person  who  commits  the  offence. 

Art.  633.  The  assumption  need  not  be  by  positive  words;  it  is  suf- 
ficient if,  by  any  device  whatever,  the  person  delivering  the  property, 
or  releasing  the  right,  is  designedly  made  to  believe  that  he  who  re- 
ceives such  property,  or  release,  is  the  person  whose  name  or  character 
he  assumes. 

Art.  634.  It  is  an  offence,  under  the  first  article  of  this  section,  after 
a  sale  of  personal  property  and  before  delivery,  to  substitute  other  pro- 
perty of  less  value  than  that  sold,  with  intent  to  defraud  the  purchaser 
of  the  price  paid,  or  to  be  received. 

Art.  635.  It  is  a  false  pretence  to  promise  immediate  payment  for 
personal  property,  and,  after  obtaining  possession  thereof,  to  refuse 
either  to  restore  the  property  or  to  pay  the  price.  The  offence,  de- 
scribed in  this  article,  is  committed  by  a  refusal  to  pay  or  to  deliver 
the  property,  on  demand,  at  any  time  within  three  days  after  the  pur- 
chase, if  the  property  be  then  in  the  possession  of  the  purchaser,  or 
within  one  hour  if  demand  be  then  made,  whether  the  property  be 
in  his  possession  or  not. 

Art.  636.  It  is  sufficient  to  make  the  party  liable  under  the  preced- 
ing article,  if  the  demand  be  made  at  the  place  where  payment  was 
promised  to  be  made,  and  the  not  making  the  payment  there  is  a  suf- 
ficient refusal  within  the  meaning  of  the  said  article. 

Art.  637.  It  is  a  false  pretence  to  give  in  payment,  for  any  personal 
property  sold  and  delivered  as  for  cash,  any  check,  bill  or  order,  which 
the  person,  giving  the  same,  affirms  will  be  paid  at  sight,  but  which  he 
shall,  at  the  time,  know  to  be  of  no  value  ;  unless  such  check,  bill  or 
order,  be  taken  on  the  credit  of  the  parties  thereto,  or  some  of  them, 
and  it  shall  be  presumed  to  have  been  so  taken  whenever  it  is  made 
payable  otherwise  than  at  sight  or  on  demand. 

Art.  638.  It  is  a  false  pretence  to  sell  any  merchandize  by  a  sample, 
taken  not  from  that  actually  sold,  but  from  other  merchandize  of  a 
greater  value,  with  intent  to  defraud. 

Art.  639.  It  is  a  false  pretence  to  produce  a  false  invoice  of  mer- 
chandize sold,  or  to  produce  an  invoice  of  other  goods  of  the  same 
description,  affirming  it  to  be  the  true  invoice  of  the  goods  sold,  for 


CODE    OF  CRIMES  AND  PUNISHMENTS.  463 

the  purpose  of  deceiving  the  purchaser  as  to  the  cost  and  value  of  the 
property  purchased. 

Art.  640.  It  is  a  false  pretence  to  make,  or  knowingly  to  produce, 
any  false  letter  or  other  paper,  not  amounting  to  forgery,  in  order  to 
influence  another  in  the  purchase  or  sale,  or  other  disposition  of  pro- 
perty. 

Art.  641.  It  is  obtaining  property  under  a  false  pretence  to  procure 
it  by  any  game,  either  of  skill  or  chance,  or  of  both,  by  any  other  means 
than  those  which  are  given  by  the  regular  chances  of  the  game,  if  it  be 
one  of  chance  ;  or  by  the  fair  exercjse  of  skill  and  knowledge  of  the 
game,  if  it  be  not  a  game  of  hazard. 

Art.  642.  It  is  a  false  pretence  fraudulently  to  make  any  false  reports, 
for  the  purpose  of  raising  or  depressing  the  price  of  the  public  funds,  or 
the  stock  of  any  incorporated  company  ;  or  to  circulate  them,  knowing 
them  to  be  false. 

Art.  643.  The  enumeration,  contained  in  this  chapter,  and  in  other 
parts  of  the  code,  of  certain  acts  which  shall  constitute  the  offence  de- 
scribed, does  not  exclude  other  acts  coming  within  the  definition.  Nor 
does  the  declaration,  that  certain  other  acts  are  not  considered  as  of- 
fences, restrict  the  exception  to  those  particular  acts. 

Art.  644.  If  the  value  of  the  property,  obtained  by  an  offence  under 
this  section,  shall  not  amount  to  more  than  thirty  dollars,  the  punish- 
ment shall  be  imprisonment,  at  hard  labour,  not  exceeding  three  years; 
and  if  the  value  exceed  that  sum,  the  imprisonment  shall  not  be  less 
than  one  nor  more  than  four  years. 


SECTION  V. 

Of  theft. 

Art.  645.  Theft  is  the  FRAUDULENTLY  TAKING  OF  CORPORAL  PER- 
SONAL PROPERTY,  having  some  ASSIGNABLE  value,  and  belonging  to 
another,  from  his  possession  and  without  his  assent. 

Art.  646.  The  subject  on  which  this  offence  can  operate,  is  exclusively 
PERSONAL  PROPERTY  ;  but  it  embraces  every  species  of  that  property 
that  can  be  taken,  and  excludes  only  incorporeal  rights. 

Art.  647.  The  "TAKING,"  mentioned  in  the  description  of  this 
offence,  is  that  which  designates  it  from  the  other  fraudulent  appro- 
priations of  property  heretofore  described..  The  following  rules  and 
illustrations  show  the  nature  of  the  taking  intended,  and  the  circum- 
stances under  which  it  constitutes  the  offence: 

1.  There  must  be  to  constitute  this  offence  a  taking,  and  that  taking 
must  be  from  the  possession  of  the  owner;  therefore,  although  there  has 
been  a  fraudulent  appropriation,  yet,  if  the  possession  was  acquired  by 
the  accused  in  such  a  way  as  to  bring  the  case  within  the  description 
of  either  of  the  offences  made  punishable  by  the  preceding  part  of  this 
chapter,  it  is  not  theft. 

2.  But  every  fraudulent  taking  from  the  possession  of  the  owner,  and 
subsequent  appropriation  of  personal  property,  which  does  not  come 
within  the  description  of  some  one  of  the  offences  described  in  the 
former  sections  of  this  chapter,  is  either  theft  or  robbery. 


464  CODE  OF  CRIMES  AND  PUNISHMENTS. 

3.  If  any  servant  or  clerk,  or  person  employed  as  such  by  any  per- 
son, receive  on  account  of  his  employers,  from  any  other  person,  or 
from  the  employer  himself,  in  trust  or  charge,  to  be  kept  or  disposed 
of  under  the  direction  of  the  employer,  any  such  property  as  is  de- 
scribed in  the  definition  of  this  offence,  the  possession  of  such  clerk  or 
servant  is,  as  relates  to  this  offence,  the  possession  of  his  employer;  and 
if  the  servant  or  clerk  fraudulently  appropriate  it,  it  is  theft. 

4.  Whenever  the  delivery  is  extorted  by  fear,  it  is  a  taking,  within 
the  definition  of  this  offence,  and  one  of  those  circumstances  which  con- 
stitutes the  offence  of  robbery. 

5.  The  possession  of  a  factor  or  agent,  entrusted  with  the  sale  or 
other  alienation  of  property,  is  not  such  a  possession  of  the  owner  as 
will  make  the  factor  or  agent  guilty  of  this  offence,  if  he  appropriate 
the  proceeds. 

6.  Taking  alone,  without  carrying  away,  is  sufficient  within  the  de- 
finition. 

7.  Taking  may  be  either  by  a  removal,  or  simply  by  laying  hold 
upon  the  article,  either  directly  with  the  hand  or  by  means  of  any  in- 
strument, in  such  a  way  as  to  evince  a  design  to  remove  it. 

8.  The  offence  is  complete  by  the  taking;  therefore,  a  voluntary  re- 
turn of  the  property  will  not  prevent  conviction;  but  it  shall  lessen  the 
punishment  one  half. 

9.  No  one  can  be  convicted  of  theft  or  robbery  for  any  taking  of 
property,  in  which  he  has  a  joint  interest  with  the  person  from  whose 
possession  it  was  taken. 

10.  He  who  has  the  general  property,  of  personal  property,  may 
commit  this  offence,  by  taking  the  same  fraudulently,  from  one  who  has 
a  special  property  in  it,  with  intent  to  make  him  answerable  for  the 
value. 

11.  If  one  of  several  persons,  having  a  joint  interest  in  personal  pro- 
perty, either  as  partners,  husband  and  wife,  or  otherwise,  deliver  it 
voluntarily  to  another,  who  takes  it  with  a  fraudulent  intent  against  the 
other  persons  interested,  it  is  not  theft. 

12.  Where  husband  and  wife  are  separated  in  person  and  estate,  the 
delivery  by  the  husband  of  the  wife's  property,  over  which  she  has 
given  him  no  control,  without  her  assent,  to  a  person  who  is  connu- 
sant  of  the  facts,  and  who  takes  it  with  a  fraudulent  intent,  it  is  theft  in 
both. 

13.  But  where  the  separation  is  of  property  only,  no  one  can  be  con- 
victed of  theft  of  the  wife's  property,  who  shows  a  voluntary  delivery 
by  the  husband. 

14.  The  last  two  preceding  rules  apply  equally  to  property  of  the 
husband,  delivered  under  similar  circumstances  by  the  wife. 

15.  The  dispositions  of  law,  in  the  case  of  thefts  or  other  offences 
committed  by  the  wife  in  company  with  the  husband,  are  found  in  the 
third  chapter  of  the  First  Book. 

16.  Neither  the  ownership  nor  the  legal  possession  of  property  is 
changed  by  theft  alone,  without  the  circumstances  required  in  such 
case  by  the  Civil  Code,  in  order  to  produce  a  change  of  property ;  there- 
fore, stolen  goods,  if  fraudulently  taken  from  the  thief,  are  stolen  from 
the  original  proprietor. 

17.  The  possession  of  articles  of  dress  or  ornament,  which  are  per- 
sonally used  by  minor  children,  who  are  not  of  sufficient  discretion 


CODE  OF  CRIMES  AND  PUNISHMENTS.  465 

to  know  the  value  of  property,  is  the  possession  of  the  parent  or  guar- 
dian; therefore,  such  property  fraudulently  taken,  although  with  the 
consent  of  the  child,  is  theft. 

Art.  648.  Although  nothing  but  corporal  personal  property,  as  the 
same  is  defined  in  this  code,  is  the  subject  of  this  offence,  yet  if  any 
one  shall  sever  from  any  BUILDING,  fixed  on  the  land  of  another,  any 
of  the  materials  of  which  it  is  formed,  or  shall  take  any  produce  of  the 
soil,  growing  on  such  soil,  of  the  value  of  five  dollars  or  more,  for  the 
purpose  of  fraudulently  appropriating  the  same  ;  and  in  pursuance  of 
such  intent,  shall  remove  them  from  the  said  land,  such  severance  is 
sufficient  to  bring  the  materials,  or  other  produce  taken,  within  the 
description  of  personal  property,  and  make  the  person  taking  the  same, 
guilty  of  theft. 

Art.  649.  Simple  theft,  if  of  property  not  exceeding  in  value  thirty 
dollars,  is  punishable  by  imprisonment,  at  hard  labour,  not  exceeding 
three  years.  If  the  property  be  above  the  value  of  thirty  dollars,  the 
punishment  shall  not  be  less  than  two  nor  more  than  four  years. 


SECTION  VI. 

Of  aggravated  theft. 

Art.  650.  The  crime  of  theft  may  be  aggravated  by  several  circum- 
stances, which  are  described  in  the  following  sections.  If  theft  be  not 
accompanied  by  any  of  them,  it  is  simple  theft. 


SECTION  VII. 

Of  theft  by  effraction. 

Art.  651.  If  any  one  shall,  in  the  DAY-TIME,  with  a  fraudulent  de- 
sign, enter  a  house,  or  a  SHIP  or  other  VESSEL,  without  breaking  or 
other  violence,  and  shall  then  and  there  commit  a  theft,  he  shall  be 
imprisoned  not  less  than  three  nor  more  than  six  years,  at  hard  labour. 

This  article  does  not  relate  to  domestic  servants,  or  other  inhabitants 
of  the  house  in  which  the  theft  is  committed. 

Art.  652.  The  last  article  only  relates  to  property  being  in  the  house 
or  ship,  not  in  the  personal  possession  of  any  one  in  it.  Taking  pro- 
perty of  this  last  description  may  be  either  simple  theft,  private  stealing 
from  the  person,  or  robbery. 

Art.  653.  If  any  one  break  into  a  house,  or  into  any  ship  or  other 
vessel,  in  the  day-time,  with  intent  to  commit  a  theft,  whether  the 
theft  be  committed  or  not,  he  shall  be  imprisoned,  at  hard  labour,  not 
less  than  four  nor  more  than  seven  years. 

Art.  654.  If  any  one  be  in  the  house,  or  in  the  ship  or  other  vessel, 
either  at  the  time  the  offence  mentioned  in  the  last  two  preceding  ar- 
ticles is  committed,  and  resist  the  offender,  or  be  restrained  from  resist- 
ing by  fear,  the  punishment  shall  be  increased  one-fourth. 

Art.  655.   The  breaking  intended  by  the  last  three  preceding  articles, 
means — first,  that  the  entry  must  be  made  with  actual  force — the  slight- 
3  I 


466  CODE  OF  CRIMES  AND  PUNISHMENTS. 

est  force  brings  the  offender  within  their  purview — the  lifting  of  a  latch 
of  a  door  that  is  shut — the  raising  a  window — the  entry  at  a  window, 
chimney,  or  other  unusual  place — the  introduction  of  the  hand  or  any 
instrument  to  draw  out  the  properly,  through  any  aperture  made  for  the 
purpose,  although  the  whole  body  does  not  enter,  is  a  breaking. 

Art.  656.  If  any  theft  shall  be  committed  by  breaking  any  closet, 
box,  or  other  place  of  the  like  nature,  in  which  the  property  stolen  was 
contained,  the  punishment  shall  be  not  less  than  four  nor  more  than 
seven  years,  at  hard  labour. 

The  breaking  meant  by  this  article  must  be  by  actual  force.  Not 
merely  lifting  the  lid  of  a  box,  or  opening  a  door,  when  either  are  un- 
fastened, the  use  of  false  keys,  or  of  the  true  one  fraudulently  obtained, 
is  a  breaking. 


SECTION  VIII. 

Of  stealing  from  the  person. 

Art.  *6.57.  If  the  theft  be  committed  by  privately  stealing  property 
from  the  person  of  another,  the  offender  shall  be  imprisoned,  at  hard 
labour,  not  less  than  two  nor  more  than  six  years. 

Art.  658.  By  "privately,"  is  meant  either  without  the  knowledge 
of  the  party  whose  property  is  taken,  or  so  suddenly  that  he  has  no 
time  to  make  resistance  before  the  property  is  carried  away. 

Art.  659.  If  the  party  perceive  the  theft,  and  attempt  to  resist  it,  and 
the  theft  is  completed  by  violence,  it  is  robbery;  if  not  completed,  after 
violence  or  threats,  it  is  an  attempt  to  rob. 

Art.  660.  If  the  article  be  TAKEN,  under  the  definition  heretofore 
given  of  that  word,  the  crime  of  private  stealing  is  complete,  although, 
owing  to  the  difficulty  of  extricating  it  from  the  person  of  the  pos- 
sessor or  from  his  detection  of  the  attempt,  it  be  not  actually  carried 
away. 

Art.  661.  The  theft  must  be  from  the  person;  if  the  property  stolen 
be  in  his  presence  only,  it  does  not  amount  to  this  offence, 


SECTION  IX. 

• 

Of  robbery. 

Art.  662.  Robbery  is  theft,  committed  by  fraudulently  taking  the 
property  of  another  from  his  person  or  in  his  presence,  with  his  know- 
ledge and  against  his  will ;  whether  it  be  taken  by  force,  or  delivered 
or  suffered  to  be  taken  through  fear  of  some  illegal  injury  to  person, 
property  or  reputation,  that  is  threatened  by  the  robber  or  his  ac- 
complice. 

Art.  663.  The  audacity  of  an  open  infringement  of  the  laws,  and  the 
alarm  and  danger  it  creates,  are  the  characteristics  of  this  species  of 
theft.  Wherever  either  of  these  occurs,  in  any  degree  in  the  com- 
mission of  theft,  the  additional  guilt  is  incurred;  therefore,  the  law  gives 


CODE  OF  CRIMES  AND  PUNISHMENTS.  467 

no  measure  for  the  degree  of  violence  necessary  to  constitute  this  crime. 
Any  force  that  accomplishes  the  object,  is  sufficient. 

Art.  664.  No  device  will  be  sufficient  to  give  another  character  to 
this  crime.  If  the  property  be  fraudulently  taken  by  violence,  or 
thus  received  when  it  is  surrendered  through  fear,  it  is  immaterial 
whether  it  be  done  by  a  direct  command,  or  by  a  request  to  give  as 
alms,  or  under  any  other  pretence. 

Art.  665.  If,  by  any  of  the  means  which  constitute  robbery,  one  is 
forced  to  give  property  for  an  inadequate  price,  it  is  robbery. 

Art.  666.  If  property  be  stolen  by  simple  theft,  and  before  it  is  car- 
ried away,  the  owner  is  forced,  by  any  of  the  means  which  constitute 
robbery,  to  give  up  his  attempts  to  recover  possession  of  the  property, 
it  is  robbery. 

Art.  667.  Any  threat,  in  order  to  be  an  effectual  cause  for  the  fear 
mentioned  in  the  definition  of  this  offence,  must  be  to  do  some  illegal 
act,  productive  of  injury,  either  to  person,  property  or  character.  A 
threat  of  withdrawing  favour,  or  doing  any  other  lawful  act,  is  not 
sufficient. 

Art.  668.  The  threat  need  not  be  direct ;  it  is  sufficient,  if  it  be  ex- 
pressed indirectly,  or  by  gestures  only,  so  as  to  produce  the  effect. 

Art.  669.  The  punishment  for  this  offence  is  imprisonment,  at  hard 
labour,  not  less  than  seven  nor  more  than  fifteen  years. 


SECTION  X. 

Of  receiving  property,  knowing  it  to  be  fraudulently  obtained. 

Art  .670.  Whoever  shall  receive,  either  by  way  of  purchase  or  on 
any  other  contract,  or  for  safe  keeping  or  concealment  ;  or  shall  con- 
ceal, or  endeavour  to  conceal  any  property,  knowing  it  to  be  fraudu- 
lently obtained  by  any  of  the  acts  which,  by  this  chapter,  are  created 
offences — shall  be  punished  in  the  same  manner  with  the  principal 
offender. 

Art.  671.  It  is  no  objection  to  the  conviction  of  a  receiver,  under  this 
section,  that  the  principal  offender  has  not  been  convicted  ;  but  if  any 
one  be  indicted,  and  in  custody  or  on  bail,  for  stealing,  or  otherwise 
fraudulently  obtaining  the  same  property,  the  person  accused  as  re- 
ceiver shall  not  be  tried,  without  his  consent,  until  the  prosecution 
against  the  principal  offender  is  disposed  of. 

Art.  672.  The  offence,  described  in  this  section,  is  a  distinct  and  sub- 
stantive offence,  not  governed  by  the  rules  which  apply  to  accessaries. 

Art.  673.  If  any  one,  knowing  that  property  has  been  taken  by 
theft,  aid  the  thief  in  removing  it  to  its  final  destination  or  place  of 
concealment — such  person  is  an  accomplice  in  the  theft,  and  not  a  re- 
ceiver. 

Art.  674.  An  accomplice  in  a  theft,  who  is  not  present  at  the  act,  and 
afterwards  receives  the  property,  is  punishable  as  an  accomplice. 

Art.  675.  Nothing  in  this  chapter  contained,  applies  to  the  taking  of 
property,  which  the  person  taking  believes  to  be  his  own,  or  that  of 
another  who  has  authorized  him  to  take  it. 


468  CODE  OF  CRIMES  AND  PUNISHMENTS. 


CHAPTER  IV. 


Of  attempts  to  defraud  by  threats. 

Art.  676.  Whoever,  with  a  FRAUDULENT  intent,  shall  threaten  ano- 
ther with  any  injury  to  his  person,  reputation  or  property,  accompa- 
nied by  a  demand  of  property,  or  of  service,  as  the  means  of  avoiding 
the  execution  of  such  threat,  shall  be  imprisoned  at  hard  labour,  not 
less  than  one  nor  more  than  five  years,  provided  such  offence  do  not 
amount  to  robbery. 

Art.  677.  The  injury  intended  by  the  last  preceding  article,  means  not 
only  a  direct  injury,  by  means  of  actual  violence,  but  also  that  which 
is  indirect,  such  as  a  threat  of  bringing  an  accusation  for  some  offence, 
either  juridically,  or  by  public  defamation. 

Art.  678.  The  injury  need  not  be  threatened  directly  against  the  pro- 
perty, person,  or  reputation  of  the  person  to  whom  the  threat  is  ad- 
dressed, if  it  be  against  the  reputation  or  person  of  the  wife  or  husband, 
ascendant  or  descendant,  of  the  person  whom  it  is  intended  to  defraud, 
it  is  sufficient  to  constitute  the  offence. 

Art.  679.  A  threat  to  vilify  the  memory  of  a  deceased  ancestor,  is  a 
sufficient  threat  to  constitute  this  crime. 

Art.  680.  This  offence  is  committed,  whether  the  threat  be  verbal 
or  written  ;  and  if  written,  whether  with  or  without  a  signature. 

Art.  681.  It  is  not  necessary  that  the  demand  of  property,  or  the 
threat,  should  be  in  direct  terms,  if  such  be  the  plain  meaning,  it  is 
sufficient. 

Art.  682.  If  any  one  shall  make  any  such  threats  by  writing,  print- 
ing, sending  or  delivering  a  letter  or  writing,  whether  in  his  own 
name,  in  a  fictitious  name,  or  anonymously,  or  shall  procure  such 
letter  to  be  written,  printed,  sent  or  delivered,  without  any  intent  to 
DEFRAUD,  and  without  any  demand  of  property,  as  the  means  of  avoid- 
ing the  execution  of  the  threat,  but  merely  from  MALICE,  he  shall  be 
imprisoned  not  less  than  one  nor  more  than  six  months,  and  fined  not 
less  than  fifty  nor  more  than  three  hundred  dollars,  and  the  whole  or 
part  of  the  imprisonment  shall  be  in  close  custody. 


CHAPTER  V. 


Of  conspiracy. 

Art.  683.  Conspiracy  is  an  agreement  between  two  or  more  persons 
to  do  any  unlawful  act,  or  any  of  those  designated  acts  which  become, 
by  the  combination,  injurious  to  others. 

The  several  conspiracies  that  are  punishable  by  law,  are  : 

1.  A  conspiracy  to  commit  an  offence. 

2.  Falsely  to  accuse  and  prosecute  another  of  committing  an  offence. 


CODE  OF  CRIMES  AND  PUNISHMENTS.  469 

3.  To  do  certain  injuries  that  are  neither  crimes  nor  offences  if  done 
by  an  individual. 

Art.  684.  The  agreement  constitutes  the  offence,  and  it  is  a  distinct 
offence  from  any  other  that  may  be  committed  in  carrying  it  into  ef- 
fect ;  and  to  complete  the  offence,  it  is  not  necessary  that  any  act 
should  be  proved  to  have  been  done  in  furtherance  of  the  agreement. 

Art.  685.  But  if  the  accused  show  that  the  design  was  abandoned, 
before  any  act  was  done  towards  its  execution,  voluntarily,  and  not 
from  any  obstacle,  the  punishment  shall  be  lessened  one-half. 

Art.  686.  Where  the  conspiracy  is  to  commit  an  offence,  the  punish- 
ment shall  be  one-half  of  that  denounced  by  law  against  the  offence 
which  it  was  the  object  of  the  agreement  to  commit,  if  it  be  not  car- 
ried into  effect,  and  in  addition  to  such  punishment,  if  it  is  committed. 

Art.  687.  Where  the  conspiracy  is  falsely  to  accuse  and  prosecute 
another  of  an  offence,  the  punishment  shall  be  one-half  of  that  which 
would  have  been  inflicted  if  the  offence  had  been  proved. 

Art  688.  It  is  not  necessary,  for  supporting  an  indictment  for  a  con- 
spiracy, to  accuse  and  prosecute  ;  to  show  that  the  party  has  been  ac- 
quitted on  such  prosecution  ;  but  if  the  prosecution,  which  is  alleged 
to  be  false,  be  pending,  the  defendants  in  the  indictment  for  conspi- 
racy are  entitled  to  have  it  tried  before  they  are  themselves  put  upon 
trial. 

Art.  689  .  The  cases  not  comprehended  in  the  foregoing  articles  of 
this  chapter,  and  in  which  conspiracies  become  unlawful,  are  as  fol- 
lows, to  wit : 

1.  Every  one  has  a  right,  individually,  to  determine  what  he  will 
give  as  a  consideration  for  services  or  property  to  be  furnished  to  him : 
he  has  the  same  right  to  withhold  his  own  service  or  property,  unless 
the  value  he  shall  place  upon  them  be  paid.     But  an  agreement,  sti- 
pulating that  the  parties  to  it  will  not  give  more  than  a  certain  price 
for  any  particular  species  of  service  or  property,  or  that  they  will  not 
furnish  or  render  any  such  property  or  service  for  less  than  a  stipu- 
lated price,  is  injurious  to  that  free  competition  necessary  to  commerce. 
And  if  such  agreement  be  made  between  two  or  more  persons  not  be- 
ing partners,  it  is  a  conspiracy,  and  shall  be  punished  by  simple  im- 
prisonment, for  not  more  than  three  months,  or  by  fine  not  exceeding 
three  hundred  dollars,  or  both. 

2.  If  the  agreement  be  made  between  employers,  not  to  give  above 
certain  wages  to  workmen,  imprisonment  shall  always  form  part  of 
the  sentence,  and  the  imprisonment  cannot  be  for  less  than  ten  days. 

3.  If  the  agreement  constituting  the  conspiracy,  in  any  case  what- 
ever, purport  to  inflict  any  injury  on  the  person,  property  or  reputa- 
tion, of  those  who  will  not  enter  into  such  agreement,  the  punishment 
shall  be  doubled. 

4.  Any  malicious  combination  or  agreement  to  injure  any  individual, 
or  description  of  persons,  in  their  reputation,  or  profession,  or  trade,  or 
property,  by  agreeing  not  to  employ  them,  or  by  other  means  that 
would  not  otherwise  amount  to  an  offence,  is  a  conspiracy,  and  shall 
be  punished  by  fine,  not  exceeding  two  hundred  dollars,  or  imprison- 
ment, not  exceeding  sixty  days,  or  both. 

5.  Any  combination  or  agreement  to  raise  the  price  of  any  articles 
of  food,  fuel  or  drink,  is  a  conspiracy,  and  is  punishable  by  fine,  not 


470  CODE  OF  CRIMES  AND  PUNISHMENTS. 

exceeding  five   hundred   dollars,   and   imprisonment,    not   exceeding 
three  months. 

6.  An  agreement  of  partners,  solely  between  themselves,  is  not  such 
an  agreement  as  can  constitute  this  offence,  unless  the  partnership  be 
specially  entered  into  for  the  purpose  of  making  such  conspiracy  ; 
in  which  case,  or  whenever  the  benefit  (if  any)  to  be  derived  from  the 
conspiracy  is  agreed  to  be  participated,  the  punishment  shall  be  dou- 
bled. 

7.  An  agreement  to  abridge  or  increase  the  quantity  or  time  of  la- 
bour, comes  within  the  description  of  limiting  the  price  to  be  given, 
or  determining  that  which  must  be  received. 


GENERAL  PROVISION. 


Of  accessaries. 

Art.  690.  All  accessaries  shall  be  punished  by  one-fourth  of  the  pun- 
ishment that  would  have  been  suffered  by  the  principal  offender  ;  pro- 
vided, that  it  shall,  in  no  case,  exceed  a  fine  of  three  hundred  dollars, 
and  imprisonment,  in  close  custody,  for  one  year 


A  CODE  OF  PROCEDURE. 


INTRODUCTORY  TITLE. 


CHAPTER  I. 


Preamble. 

Art.  1.  It  is  not  enough  to  have  defined  offences  and  designated  the 
punishments  adapted  to  them  :  every  citizen  must  not  only  be  taught 
what  actions  he  is  to  avoid  as  offences,  but  must  also  be  informed  by 
what  means  he  may  prevent  an  injury  he  apprehends,  or  bring  the  of- 
fender to  justice  if  the  wrong  be  already  suffered. 

Judges,  other  magistrates,  and  ministers  of  justice,  must  have  their 
duties  defined  not  only  for  their  own  guidance,  but  that,  being  gene- 
rally understood,  they  may  receive  the  high  reward  of  public  approba- 
tion, or  suffer  disgrace  or  punishment ;  as  those  duties  are  performed, 
neglected,  or  wilfully  abandoned. 

These  considerations  have  induced  the  general  assembly  of  Loui- 
siana to  enact  this  Code  of  Procedure,  forming  a  part  of  their  System 
of  Penal  Law.  It  is  divided  into  three  books  : 

The  first  contains  the  means  of  preventing  offences,  and  of  putting 
an  end  to  such  as  continue  ;  it  designates  the  cases  in  which  the  milita- 
ry force  may  be  employed  in  aid  of  the  civil  power,  and  prescribes  the 
rules  by  which  it  shall  be  governed  in  that  service. 

The  second  directs  the  mode  of  proceeding  for  bringing  an  offender 
to  punishment,  from  the  complaint  to  the  final  judgment. 

The  third  gives  the  forms  to  be  used  in  all  the  judicial  proceedings 
prescribed  or  authorized  by  this  code. 


CHAPTER  II. 


General  provisions. 

Art.  2.  This  code  being  a  part  of  the  general  system  of  Penal  Law, 
all  the  words  used  herein,  are  employed  in  the  same  sense  that  is  given 
to  them  when  they  are  used  in  any  other  part  of  the  system. 

Art.  3.  All  the  general  provisions  in  the  second  chapter  of  the  first 
book  of  the  Code  of  Crimes  and  Punishments,  and  all  such  general 
provisions  in  other  parts  thereof  as  apply  to  the  subject  of  this  code, 
3K 


474  CODE  OF  PROCEDURE. 

have  the  same  force  in  this  that  they  have  in  the  Code  of  Crimes  and 
Punishments. 

Art.  4.  The  objects  which  the  general  assembly  has  endeavoured  to 
effect  by  this  code,  are  : 

1.  The  prevention  of  intended  offences — This  is  attained  by  point- 
ing out  on  what  occasions,  and  by  what  means  an  individual  may  call 
for  the  interference  of  the  magistrate,  or  of  his  fellow  citizens,  or  may 
use  his  own  physical  powers  to  resist  any  attempted  invasion  of  his 
rights  or  those  of  others. 

2.  The  protection  of  innocence  against  unjust  accusations. — No 
laws  can  in  all  cases  protect  against  perjury,  error,  or  the  combination 
of  circumstances  which  sometimes  gives  to  innocence  the  appearance  of 
guilt ;  but  they  can,  and  ought  to  provide  every  facility  that  human 
prudence  can  suggest,  and  human  power  can  effect,  for  making  truth 
evident,  and  detecting  error  ;  they  should  also,  by  avoiding  all  entan- 
gling forms,  insure  an  acquittal  to  every  one  who  is  accused  unless  his 
guilt  be  made  apparent. 

3.  To  take  away  from  the  guilty  all  hope  of  escape  by  a  resort  to 
formal  or  technical  objections. — The  great  object  of  penal  law  is  the 

prevention  of  offences  by  the  example  of  punishment,  the  intent  of  all 
codes  of  procedure  is  to  insure  this  end  ;  therefore,  every  system  must 
be  imperfect  which  permits  the  form  to  defeat  the  substance  of  the 
law,  and  suffers  a  criminal  ever  to  escape  punishment,  from  any  defect 
of  form  in  his  prosecution. 

4.  To  give  to  criminal  proceedings  the  greatest  degree  of  de- 
spatch that  is  consistent  with  the  prosecution  of  public  justice  on 
the  one  side,  and  the  defence  of  private  rights  on  the  other. — Delay 
inflicts  punishment  on   the  innocent,  or  lessens  the  force  of  example, 
by  punishing  the  guilty  after  the  crime  he  has  committed  is  forgotten. 

5.  To  subject  the  innocent  to  no  expense,  and  to  impose  none  on 
the  guilty  but  such  as  may  be  measured  and  apportioned  to  the  of- 
fence.— To  add  to  the  evil  of  an  unjust  accusation  the  obligation  of 
paying  for  it,  would  be  an  absurdity  and  an  injustice  that  no  law  should 
sanction  ;  and  the  indiscriminate  infliction  of  costs  on  every  conviction 
without  regard  to  the  circumstances  of  the  offender  or  the  nature  of 
his  offence,  is  scarcely  less  unjust. 

6.  To  abolish  all  forms,  that  produce  vexation  to  the  prosecutor, 
to  the  accused  or  to  the  witnesses  ;  and  to  subject  no  one  who  is  con- 
cerned in  a  criminal  proceeding  to  any  inconvenience,  but  such  as 
are  absolutely  necessary  for  the  execution  of  the  law. — The  obliga- 
tions and  restraints  imposed  by  the  most  perfect  laws,  are  necessarily 
attended  with  inconvenience  to  those  who  are  called  on  to  execute  them, 
or  have  become  subject  to  their  animadversion  ;  to  reduce  them  to  the 
lowest  degree  consistent  with  public  safety,  is  one  object  of  the  present 
code. 

7.  To  render  the  whole  form  of  proceeding  simple  and  perfectly 
intelligible  to  all. — The  utility  of  this  object  is  so  apparent  as  to  ren- 
der no  illustration  necessary. 

Art.  5.  These  objects  :  security  to  the  innocent,  not  only  from  the 
danger  of  an  unjust  conviction,  but  the  apprehension  of  it ;  the  pre- 
vention of  intended  offences;  the  destruction  of  all  hope  of  escape  from 
merited  punishment  by  a  resort  to  formal  objections;  despatch;  econo- 
my ;  the  abolition  of  all  vexatious  proceedings,  and  the  establishment 


CODE  OF  PROCEDURE.  475 

of  simplicity  in  forms,  have  been  the  principal  objects  in  the  formation 
of  this  code,  and  they  are  conspicuously  placed  here  that  future  legis- 
latures may  weigh  their  importance,  examine  how  far  the  different  pro- 
visions of  this  code  are  in  conformity  with  them,  and  in  what  points 
they  are  not  adhered  to,  in  order  that  the  proper  amendments  may  be 
made  to  give  them  effect. 


476  CODE  OF  PROCEDURE. 


BOOK  I. 


OF  THE  MEANS  OF  PREVENTING  OFFENCES  ;  OF  SUPPRESSING  THOSE 
WHICH  ARE  CONTINUOUS,  AND  OF  EMPLOYING  THE  MILITARY  IN  AID 
OF  THE  CIVIL  POWER. 


TITLE  I. 


OF    PREVENTING   OFFENCES. 

Art.  6.   Offences  may  be  prevented, 

1.  By  lawful  resistance. 

2.  By  the  intervention  of  the  officers  of  justice. 

Art.  7.  Resistance  to  the  offender  in  the  commission  of  the  offence 
*nay  be  made  in  the  cases  and  in  the  manner  prescribed  by  law,  either 
by  the  person  about  to  be  injured  or  by  others,  without  the  interven- 
tion of  the  officers  of  justice. 


CHAPTER  I. 


Of  resistance  by  the  party  offended. 

Art.  8.  Resistance,  proportioned  to  the  degree  of  aggression,  may 
be  used  to  prevent  any  of  those  acts  described  in  the  Code  of  Crimes 
and  Punishments,  as  "  Offences  against  the  person." 

Art.  9.  The  same  degree  of  resistance  may  be  opposed  to  prevent 
any  illegal  attempt  by  force  to  take  or  injure  property  in  the  lawful  pos- 
session of  the  person  holding  it. 

Art.  10.  By  the  resistance  proportioned  to  the  aggression  in  the 
above  articles  is  meant,  such  as  is  sufficient  for  the  purpose  of  prevent- 
ing the  offence,  and  no  more. 

Art.  11.  The  Code  of  Crimes  and  Punishments  in  the  titles  relative 
to  offences  affecting  person  and  property,  contains  rules  by  which  the 
exercise  of  this  right  is  elucidated  and  modified. 


CODE  OF  PROCEDURE.  477 


CHAPTER  II. 


Of  the  rights  and  duties  of  third  persons  in  preventing  the  com- 
mission or  continuance  of  offences. 

Art  12.  It  is  the  duty  of  every  citizen  not  only  to  abstain  from 
offences  himself,  but  to  prevent  their  being  committed  by  another,  if  he 
can  do  so  without  injury  to  himself:  if  he  voluntarily  incur  the  risk 
of  such  injury  it  is  a  merit  which  entitles  him  to  public  esteem  and  in 
certain  cases  provided  by  law,  to  an  honorary  reward.  The  cases  in 
which  this  duty  of  interfering  to  prevent  offences  is  permitted,  and  those 
in  which  it  is  enforced  under  a  penal  sanction,  are  detailed  in  the 
following  articles  of  this  chapter. 

Art.  13.  In  all  cases  where  an  nflfenr.p.  is  seriously  threatened  or  in- 
tended, it  is  a  moral  duty  in  him  to  whose  knowledge  such  intent  may 
come,  to  prevent  its  execution  by  notice  given  either  to  the  party  who 
may  be  affected,  or  to  a  magistrate.  It  is  an  offence  to  have  omitted 
such  notice,  in  all  cases  where  the  crime  is  subsequently  committed,  and 
is  one  of  those  punishable  by  imprisonment  for  life,  provided,  the  in- 
tention has  been  made  manifest  by  express  words,  "or  by  doing  some 
act  preparatory  to  the  commission  of  the  crime  :  whoever  shall  be  guilty 
of  this  offence  shall  be  fined  not  exceeding  one  hundred  dollars  or  im- 
prisoned not  exceeding  sixty  days. 

Art.  14.  In  cases  in  which  the  intention  has  been  shown  by  an  act 
which  itself  is  an  offence,  (such  as  a  conspiracy)  and  the  intent  is  to 
commit  a  crime  punishable  by  imprisonment  for  life  :  the  person  hav- 
ing a  knowledge  of  such  conspiracy  or  other  preparatory  act,  who 
shall  not  give  notice  of  it  to  a  magistrate  or  to  the  party  about  to  be  in- 
jured, shall  incur  the  punishment  denounced  by  the  last  preceding 
article,  whether  the  intended  crime  be  committed  or  not. 

Art.  15.  After  an  offence  has  been  committed,  the  mere  omission  to 
denounce  it  is  not  punishable,  if  not  accompanied  by  such  an  act  as 
renders  the  person  an  accessary. 

Art.  16.  Every  species  of  such  illegal  violence  to  the  person  or  pro- 
perty as  is  by  the  Code  of  Crimes  and  Punishments  constituted  an  of- 
fence, may  be  suppressed  after  it  has  begun  to  be  exercised,  by  the  re- 
sistance not  only  of  the  party  injured,  but  by  that  of  others  who  may 
come  to  his  aid,  but  they  are  bound  in  exercising  this  right  to  propor- 
tion the  means  and  degree  of  resistance  to  the  violence  offered,  accord- 
ing to  the  rules  that  are  prescribed  to  the  party  injured  in  the  last  pre- 
ceding chapter,  and  the  parts  of  the  code  to  which  it  refers. 

Art  17.  All  those  who  are  legally  called  on  by  any  magistrate  or 
officer  of  justice  in  the  execution  of  his  duties,  are  not  only  justified  in 
giving  their  aid  in  suppressing  acts  of  illegal  violence,  and  arresting 
offenders,  but  are  bound  to  do  so,  under  the  penalty  of  a  fine  not  ex- 
ceeding fifty  dollars. 

Art.  18.  If  any  one  shall  voluntarily  incur  any  great  danger,  or 
use  extraordinary  diligence,  or  show  unusual  skill  in  preventing  or  sup- 
pressing an  offence,  or  in  arresting  an  offender,  he  shall  be  entitled  to 


478  CODE  OF  PROCEDURE. 

an  honorary  certificate  made  by  the  court,  having  the  highest  penal  juris- 
diction in  the  district  of  his  residence,  which  certificate  shall  be  enter- 
ed on  the  minutes  of  the  court,  and  published  three  times  in  three 
successive  years,  and  authenticated  copies  shall  be  sent  to  the  governor 
of  the  state,  and  to  the  president  of  the  senate,  to  serve  as  recommen- 
dations for  an  appointment  to  any  office  in  which  the  qualities  he  has 
shown  may  be  useful. 

Art.  19.  Incases  of  extraordinary  exertion,  coming  within  the  intent 
of  the  last  preceding  article,  which  in  the  opinion  of  the  judge,  and  of 
the  governor  of  the  state,  shall  merit  such  distinction,  a  piece  of  plate 
of  the  value  of  one  hundred  dollars,  with  a  suitable  inscription,  to  be 
executed  under  the  direction  of  the  governor,  shall  be  added  to  the 
honorary  certificate. 

Art.  20.  Whoever  shall  give  such  information  to  a  magistrate  as 
shall  lead  to  the  conviction  of  any  one  guilty  of  fighting  a  duel,  or  giv- 
ing or  accepting  a  challenge,  or  forgery,  or  any  crime  punishable  by 
imprisonment  for  life,  shall  be  entitled  to  receive,  on  the  certificate  of 
the  judge  and  public  prosecutor  in  the  court  where  the  conviction  was 
had,  the  sum  of  fifty  dollars,  from  the  treasurer  of  the  state,  out  of  the 
moneys  received  for  fines. 

Art.  21.  Neither  the  party  immediately  injured  by  any  of  the  crimes 
referred  to  in  the  last  article,  nor  an  accomplice  in  the  crime,  are  enti- 
tled to  the  recompense  therein  mentioned. 

Art.  22.  The  crime  of  rape  being  one  of  those  that  can  only  be  pro- 
secuted on  the  complaint  of  the  party  injured,  is  not  included  in  those 
for  the  discovery  of  which  the  recompense  is  offered. 

Art.  23.  When  laws  are  just,  whoever  contributes  to  their  execution, 
renders  an  acceptable  and  an  honourable  service  to  his  country,  and  he 
ought  no  more  to  be  reproached  for  receiving  a  recompense  for  the 
trouble  of  denouncing  an  offender,  than  for  taking  a  salary  for  any  other 
public  service  ;  therefore,  to  repress  the  effects  of  a  vulgar  and  injurious 
prejudice,  it  is  declared  to  be  an  offence  for  any  one  in  writing  or  in 
any  other  way  by  which  defamation  may  be  committed,  to  use  reproach- 
ful or  insulting  words  against  any  person,  or  endeavour  to  bring  him 
into  contempt,  or  excite  the  public  indignation  against  him  for  having 
given  information  against  any  offender,  or  for  having  received  the  re- 
compense granted  by  law  ;  and  the  offender  shall  be  punished  by  fine 
not  less  than  twenty  nor  more  than  one  hundred  dollars. 


CHAPTER  III. 

Of  the  prevention  of  offences  by  the  intervention  of  officers  of  justice. 

Art.  24.  When  any  one  fears,  with  JUST  REASON,  that  another  intends 
to  commit  an  offence  against  his  person  or  property,  with  violence,  he 
may  apply  to  a  magistrate,  who  shall  without  delay  take  the  declaration 
of  the  applicant,  under  oath,  reduced  to  writing  ;  and  if  it  appears  that 
he  has  any  reason  to  fear  the  commission  of  such  an  offence  as  is  above 
described  from  any  DESIGNATED  PERSON,  he  may  cause  such  person  lo 


CODE  OF  PROCEDURE.  479 

be  arrested  and  brought  before  him  by  warrant,  which  must  substantial- 
ly state  the  application. 

Art.  25.  When  any  one  so  arrested  is  brought  before  the  magistrate, 
he  shall  hear  any  statement  or  proof  the  accused  has  to  offer,  and  if 
from  such  statement  and  evidence  it  appear  that  the  complainant  has 
mistaken  the  intention  of  the  accused,  and  has  no  cause  of  fear,  the 
prisoner  shall  be  discharged  ;  if  he  fail  in  showing  that  the  application 
is  groundless,  the  magistrate  shall  direct  him  to  give  bond  with  sufficient 
security  that  he  will  commit  no  offence  against  the  person  or  property 
of  the  complainant. 

Art.  26.  The  penalty  of  such  bond  shall  be  determined  by  the  rules 
laid  down  in  this  code,  for  the  government  of  magistrates  in  taking  bail. 

Art.  27.  If  the  bond  be  not  executed  according  to  the  order  of  the 
magistrate,  the  prisoner  shall  be  committed  to  prison,  and  shall  remain 
in  custody  until  the  bond  shall  be  executed  according  to  the  order. 

Art.  28.  If  from  the  nature  of  the  evidence  offered,  or  from  the 
demeanour  of  the  prisoner,  the  magistrate  has  just  reason  to  believe  that 
the  prisoner  intends  an  offence  against  the  person  or  property  of  any 
persons  who  cannot  be  particularly  designated,  he  may  order  the  bond 
to  be  conditioned  that  he  will  commit  no  offence  against  the  person  or 
property  of  any  one. 

Art.  29.  The  bond  shall  be  limited  in  its  operation  to  the  term  of 
twelve  months  ;  but  it  may  be  for  a  shorter  time  ;  and  at  any  time 
within  the  last  month,  the  complainant  may  renew  his  application,  and 
the  order  for  security  may  be  renewed  on  the  oalh  of  the  party,  de- 
claring that  he  still  fears  the  execution  of  the  prisoner's  former  designs, 
provided  the  magistrate,  after  hearing  the  circumstances  of  the  case, 
shall  deem  such  fear  well  founded. 

Art.  30.  Any  magistrate  who  is  present  when  any  offence,  accom- 
panied with  violence,  is  committed,  may,  without  any  other  proof,  order 
the  offender 'to  be  arrested,  and  compel  him  to  give  security  in  the 
manner  above  directed,  to  refrain  from  the  exercise  of  any  illegal  force. 

Art.  31.  Any  person  who  knows  or  has  reason  to  suspect  that  an 
offence,  such  as  is  distinguished  in  this  code  as  one  of  those  against 
person  or  property  is  intended  to  be  committed,  may  apply  to  a  magis- 
trate, who  shall  hear  the  proof,  and  if  he  be  convinced  of  the  existence 
of  such  intention,  shall  cause  the  person  accused  to  be  arrested,  and 
compelled  to  give  security  in  the  manner  before  directed. 

Art.  32.  Courts  may  on  any  conviction  add  to  their  sentence  that 
after  the  execution  of  the  punishment  is  complete,  and  before  the  de- 
fendant, if  in  custody,  be  discharged,  he  shall  give  security  in  the  form 
and  for  the  time  above  directed,  either  that  he  will  not  commit  any 
particular  offence  or  any  designated  species  of  offences,  or  generally, 
that  he  will  commit  no  offence  for  the  time  limited.  But  this  power 
is  only  to  be  exercised  where,  from  the  character  of  the  party  or  his 
conduct  in  committing  the  offence,  there  is  good  reason  to  apprehend 
a  repetition  of  that  offence,  or  the  commission  of  some  other. 

Art.  33.  If  the  condition  of  the  bond  be  forfeited,  it  shall  be  put  in 
suit  by  the  public  prosecutor,  who  must  specify  in  his  petition  in  such 
suit  the  offence  which  caused  the  breach  of  the  condition  of  the  bond, 
with  the  same  certainty  that  is  required  in  an  indictment,  and  must 
prove  the  same  by  the  same  evidence  that  would  be  required  on  a 
trial  for  the  same  offence. 


480  CODE  OF  PROCEDURE. 

Art.  34.  At  any  time  before  the  breach  of  the  condition  of  such 
bond,  the  surety  may  discharge  himself  by  surrendering  the  principal, 
in  the  manner  herein  directed  in  the  case  of  bail  for  appearance. 

Art.  35.  Individuals  have  also  a  right  to  prevent  the  consequences 
of  a  theft  by  seizing  any  personal  property  which  has  been  stolen,  or 
which  there  is  good  reason  to  believe  has  been  stolen,  and  bringing  it 
with  the  supposed  offender,  if  he  can  be  taken,  before  a  magistrate  for 
examination,  or  delivering  it  to  an  officer  of  justice  for  that  purpose  ; 
but  this  must  be  done  openly,  and  the  whole  without  delay. 

Art  36.  When  the  nature  of  the  case  and  the  proof  offered  to  the 
magistrate,  of  any  intended  injury  to  person  or  property,  justifies  and 
requires  it  in  his  opinion,  he  may  order  a  sufficient  number  of  officers 
of  justice  to  guard  the  person  or  property  threatened,  or  may,  accord- 
ing to  the  directions  hereinafter  contained,  require  military  aid  for 
that  purpose. 

Art.  37.  If  any  one  be  brought  before  a  magistrate  by  virtue  of  an 
application  under  the  first  article  of  this  chapter,  where  the  complain- 
ant has  made  oath  that  he  fears  violence,  but  it  does  not  appear  to  the 
magistrate  that  from  the  circumstances  such  fears  are  well  grounded, 
he  shall,  nevertheless,  before  discharging  the  prisoner,  admonish  him 
of  the  nature  and  consequences  of  the  offence  which  the  applicant  fears 
he  will  commit,  and  if  after  such  admonition  the  prisoner  shall  com- 
mit such  offence,  he  shall  suffer  the  maximum  of  the  punishment  as- 
signed to  the  same. 

Art.  38.  The  constitution  of  the  state  gives  to  every  citizen  the 
right  "freely  to  speak,  write  and  prinion  any  subject,  being  responsi- 
ble for  the  abuse  of  that  liberty  ;"  therefore,  no  law  can  be  made  to  pre- 
vent any  intended  defamation  in  either  of  those  modes  ;  but  if  any  one 
shall  make  oath  that  he  is  informed  and  believes,  and  shall  convince 
the  magistrate  that  he  has  good  reason  to  believe  that  another  is  about 
to  PUBLISH,  SELL  or  CIRCULATE,  or  is  continuing  to  sell,  publish  or  cir- 
culate any  libel  against  him,  or  any  such  publication  as  is  forbidden  by 
the  Code  of  Crimes  and  Punishments,  in  the  chapter  of  offences  against 
morals  and  decency,  the  magistrate  shall  cause  the  person  accused  to  be 
summoned  to  appear  before  him,  and  shall  admonish  him  of  the  nature 
and  consequences  of  the  offence  which  the  applicant  fears  he  will  com- 
mit ;  and  if  after  such  admonition  the  accused  shall  commit  such  offence, 
he  shall  suffer  the  maximum  of  the  punishment  assigned  to  the  same. 

Art.  39.  On  a  conviction  for  a  libel,  or  for  any  publication  forbidden 
by  the  chapter  of  the  Code  of  Crimes  and  Punishments  concerning  of- 
fences against  morals  and  decency,  the  court  shall  order  all  the  copies 
of  the  publication  on  which  the  conviction  was  had  ;  and  which  remain 
in  the  hands  of  the  defendant,  to  be  seized  and  destroyed  ;  and  if  it 
shall  appear  that  after  the  commencement  of  the  prosecution  was  noti- 
fied to  the  defendant,  he  shall  have  sold  or  circulated  any  copies  of 
such  publication,  he  shall  suffer  the  maximum  of  the  punishment  as- 
signed to  the  offence. 

Art.  40.  The  court  shall,  in  like  manner,  on  a  prosecution  for  selling 
unwholesome  provisions  or  liquors,  or  adulterated  medicines,  order 
them  to  be  seized,  and  after  conviction  they  shall  be  destroyed  ;  and 
any  sale  made  by  the  accused  during  the  pendency  of  the  prosecution, 
shall  produce  the  same  effects  as  to  the  punishment  that  is  directed  in 
the  last  preceding  article  with  respect  to  libels. 


CODE  OF  PROCEDURE.  481 

Art.  41,  Another  case  in  which  the  court  must  interfere  to  prevent 
offences  is,  by  ordering  the  removal  of  all  such  obstructions  in  public 
and  common  property,  and  all  such  establishments  injurious  to  public 
health,  as  shall  be  found  by  a  conviction  of  the  offender  to  have  been 
made. 


CHAPTER  IV. 


Of  search  warrants,  as  the  means  of  preventing  the  commission  of 
crimes  and  the  loss  of  property  by  theft. 

Art.  42.  A  search  warrant  is  an  order  in  writing  made  by  a  magis- 
trate, directed  to  an  officer  of  justice,  commanding  him  to  search  for 
certain  specified  articles,  supposed  to  be  in  the  possession  of  one  who 
is  charged  with  having  obtained  them  illegally,  or  who  keeps  them 
with  the  intent  of  using  them  as  the  means  of  committing  a  certain  de- 
signated crime. 

Art.  43.  The  power  of  granting  this  writ  is  one  in  the  exercise  of 
which  much  is  necessarily  left  to  the  discretion  of  the  magistrate  ;  he 
is,  however,  bound  by  ihe  following  rules  in  granting  the  warrant,  and 
the  ministerial  officer  by  those  which  are  afterwards  laid  down  for  his 
conduct  in  executing  it. 

Rules  for  the  magistrate  in  granting  a  search  warrant. 

1.  Search  warrants  can  only  be  granted  for  the  following  purposes, 
that  is  to  say  : 

To  discover  property  taken  by  theft  or  under  false  pretences,  or 
found  and  fraudulently  appropriated. 

To  seize  forged  instruments  in  writing  or  counterfeited  coin  intended  , 
to  be  passed,  or  the  instruments  or  materials  prepared  for  making  them. 

To  seize  arms  or  munitions  prepared  for  the  purpose  of  insurrection 
or  riot. 

To  discover  articles  necessary  to  be  produced  on  the  trial  of  one  ac- 
cused of  a  crime  under  the  circumstances  hereinafter  stated. 

2.  A  search  warrant  can  be  granted  in  no  case  but  on  an  AFFIDAVIT, 
made  by  a  credible  person. 

3.  If  the  application  be  to  search  for  property  taken  by  theft  or  un- 
der false  pretences,  the  affidavit  must  state  that  the  property  has  been 
lost  by  one  of  these  offences  ;    it  must  describe  the  property,  and  state 
a  belief  and  the  reason  of  such  belief,  that  the  property  is  concealed  in 
a  certain  place,  describing  it. 

4.  If  forged  papers,  false  coin,  or  the  instruments  or  materials  for 
making  them,  form  the  object  of  the  application,  the  affidavit  must 
state  a  belief  and  the  reason  on  which  it  is  founded,  that  those  articles 
or  some  of  them  are  concealed  in  a  certain  place,  describing  it,  with 

(intent  to  commit  a  crime. 
5.   If  the  application  be  to  search  for  arms  or  munitions  prepared  for 
insurrection  or  riot,  the  affidavit  must  state  a  belief  and  reasonable 
3  L 


482  CODE  OF  PROCEDURE. 

grounds  for  such  belief,  that  a  conspiracy  has  been  formed,  or  an  un- 
lawful assembly  held,  for  the  purpose  of  preparing  the  means  for  exe- 
cuting those  offences,  and  that  the  arms  or  munitions  were  part  of  such 
preparation  ;  and  must  also  describe  the  place  in  which  it  is  suspected 
they  are  deposited. 

6.  When  any  one  accused  of  a  crime  before  a  magistrate,  to  whom 
it  shall  appear  from  the  circumstances  in  evidence  before  him,  that  the 
production  of  some  weapon,  implement  or  other  article,  will  be  neces- 
sary on  the  trial  of  the  accusation,  if  it  shall  appear  by  the  oath  of  at 
least  one  witness,  that  there  is  good  reason  to  believe  that  such  article 
is  concealed  in  a  certain  place,  this  warrant  may  also  issue. 

7.  The  designation  of  a  house  by  the  name  of  the  owner  or  the  oc- 
cupant, or  by  the  number  or  situation,  is  a  sufficient  description  of  place 
under  the  preceding  articles. 

8.  If  the  magistrate  be  satisfied  of  the  truth  of  the  allegations  in  the 
affidavit,  he  shall  make  his  warrant  in  the  form  prescribed  for  that  pur- 
pose in  this  code,  but  no  variation  from  that  form  shall  affect  the  valid- 
ity of  the  warrant,  provided  it  be  not  deficient  in  one  of  the  following 
requisites  : 

First.  It  must  be  in  WRITING,  and  signed  by  the  magistrate  with 
his  name  ;  and  the  designation  of  the  office  he  holds,  must  appear  ei- 
ther by  the  signature  or  in  the  form  of  the  warrant. 

Second.  It  must  be  directed  to  the  sheriff  or  to  some  other  officer  of 
justice  :  if  to  the  sheriff,  it  may  be  by  the  designation  of  his  office  ;  if 
10  any  other  officer  of  justice,  his  name  as  well  as  his  office  must  be 
put  in  the  direction. 

Third.  It  must  direct  him  to  search  for  and  bring  before  the  magis- 
trate to  be  disposed  of  according  to  law,  the  property  or  articles  spe- 
cified in  the  affidavit,  describing  it  as  set  forth  in  the  affidavit. 

Fourth.  The  place  to  be  searched  must  be  specified  with  reasona- 
able  certainty. 

Fifth.  The  officer  must  be  directed  to  execute  the  warrant  in  the 
day  time. 

Sixth.  The  officer  must  be  directed  to  bring  the  property  described, 
and  the  person  in  whose  possession  it  may  be  found,  before  the  magis- 
trate for  examination,  without  delay. 

9.  When  the  property  is  brought  before  the  magistrate,  if  upon  the 
examination  and  evidence  offered  him  it  shall  be  identified  to  be  the 
same  with  that  described  in  the  affidavit,  and  that  it  was  taken  or  held 
for  the  purpose  mentioned  therein,  he  shall  cause  an  inventory  to  be 
publicly  taken  thereof,  in  the  presence  of  the  party  in  whose  possession 
it  was  found  and  of  the  applicant  for  the  warrant,  if  they  choose  to  at- 
tend ;   one  copy  of  which  shall  be  given  to  each  of  them,  one  kept  by 
the  sheriff,  and  another  filed  by  the  magistrate,  with  his  proceedings, 
for  the  purpose  of  being  sent  with  the  articles  seized  to  the  court  that 
shall  try  the  offence. 

10.  If  the  magistrate  discovers  either  that  the  property  seized  is  not 
the  same  with  that  described  in  the  affidavit  and  warrant,  or  that  there 
is  no  good  reason  for  the  suspicions  set  forth  in  the  affidavit,  he  shall 
direct  the  property  to  be  restored,  and  the  possessor,  if  brought  before 
him,  discharged. 

11.  If  the  person  in  whose  possession  the  property  was  found,  shall 
be  brought  before  the  magistrate  in  obedience  to  the  writ,  he  shall  pro- 


CODE  OF  PROCEDURE.  483 

ceed  to  his  examination  in  the  manner  directed  for  examinations  on 
arrests,  and  shall  either  discharge,  commit  or  let  him  to  bail,  as  is  di- 
rected in  that  part  of  this  code. 

Rules  for  the  government  of  officers  of  justice  in  the  execution  of 

search  warrants. 

1.  If  the  warrant  be  directed  to  a  sheriff,  it  may  be  executed  by  him 
or  any  of  his  known  deputies  previously  appointed,  but  if  he  make  a 
special  deputy  for  the  purpose  of  the  deputation,  the  name  of  the  per- 
son shall  be  written  on  the  warrant. 

2.  If  the  warrant  be  directed  by  the  magistrate  to  any  other  officer 
of  justice,  he  must  see  that  his  name  as  well  as  his  office  is  written  in 
the  warrant,  and  in  all  cases  the  officer  must  see  that  the  warrant  con- 
tain all  the  requisites  above  stated,  to  give  it  validity  ;  if  it  do  not,  he 
is  not  bound  to  execute  it. 

3.  Before  executing  the  warrant,  the  officer  must  give  notice  of  its 
execution  to  the  person  who  applied  for  it,  that  he  may  be  present  and 
identify  the  property  if  it  be  found. 

4.  The  warrant  must  be  executed  in  the  presence  of  two  inhabitants 
of  the  parish,  who  shall  sign  the  return  as  witnesses. 

5.  It  can  only  be  executed  in  the  DAY  TIME. 

6.  No  other  place  than  that  designated  in  the  warrant  can  be  search- 
ed, but  the  whole  of  that  may  be  examined. 

7.  The  officer  charged  with  the  warrant,  if  a  HOUSE  is  designated  as 
the  place  to  be  searched,  may  enter  it  without  demanding  permission 
if  he  find  it  open  ;   if  the  doors  be  shut,  he  must  declare  his  office  and 
his  business,  and  demand  entrance  ;  if  the  doors  be  not  opened,  he  may 
break  them.     When  entered,  he  may  demand  that  any  other  part  of 
the  house,  or  any  closet,  or  other  closed  place  in  which  he  has  reason 
to  believe  the  property  is  concealed,  may  be  opened  for  his  inspection, 
and  he  may  break  them  if  it  is  refused. 

8.  If  required,  the  officer  must  show  his  warrant. 

9.  He  makes  himself  liable  to  damages  and  to  the  penalties  pre- 
scribed by  the  Code  of  Crimes  and  Punishments  in  cases  of  misbeha- 
viour in  office,  by  any  unnecessary  force,  harshness  or  ill  usage  in  the 
discharge  of  this  duty. 

10.  An  inventory  of  the  property  seized  must  be  made  before  it  is 
removed,  and  signed  by  the  officer  and  the  two  witnesses. 

11.  No  other  property  but  that  specified  in  the  warrant  must  be 
seized. 

12.  If  the  property  specified  in  the  warrant  be  seized,  the  person  in 
whose  possession  it  was  found  must  be  arrested,  according  to  the  forms 
in  this  code  for  making  arrests,  and  with  the  property  brought  for  ex- 
amination before  the  magistrate  who  issued  the  warrant. 

13.  A  return  shall  be  indorsed  or  annexed  to  the  warrant,  stating 
what  was  done  in  obedience  to  it,  and  signed  by  the  officer  and  the 
two  witnesses. 

Art.  44.  Whoever  shall  maliciously  and  without  reasonable  cause, 
procure  any  search  warrant  to  be  issued  and  executed,  shall  be  fined 
not  less  than  fifty  nor  more  than  three  hundred  dollars,  or  imprisoned 
not  less  than  thirty  days  nor  more  than  six  months,  and  the  imprison- 
ment, or  any  part  of  it,  may  be  in  close  custody. 


484  CODE  OF  PROCEDURE. 

Art.  45.  If  any  magistrate  shall  issue  a  search  warrant  without  a 
previous  affidavit,  as  required  by  this  chapter,  he  shall  suffer  the  pun- 
ishment mentioned  in  the  last  preceding  article,  and  be  deprived  of  his 
office. 

Art.  46.  Any  officer  of  justice,  who  in  executing  a  search  warrant, 
shall  exceed  his  authority  to  the  injury  of  any  one,  shall  be  imprisoned 
not  exceeding  sixty  days,  besides  suffering  the  punishment  assigned  to 
any  other  offence  he  may  have  committed  by  such  illegal  conduct. 


TITLE  II. 


OF  SUPPRESSING  PERMANENT  OFFENCES. 

Art.  47.  Permanent  offences  are  such  as  are  renewed  by  a  continued 
succession  of  the  same  acts  which  first  created  them.  They  may  affect 
the  public  tranquillity,  the  public  health,  the  public  property,  or  the 
person,  the  reputation,  or  the  property  of  individuals. 


CHAPTER  I. 


Of  suppressing  permanent  offences  against  the  public  tranquillity. 

Art.  48.  The  mode  in  which  magistrates  and  officers  of  justice  are 
to  proceed  in  the  suppression  of  offences  of  this  nature,  is  declared  in 
the  title  that  treats  of  those  offences  in  the  Code  of  Crimes  and  Pun- 
ishments, and  will  be  further  provided  for  in  the  next  title  of  this  book. 


CHAPTER  II. 


Of  suppressing  permanent,  offences  against  public  health  and  safety. 

Art.  49.  Whenever  an  indictment  shall  be  found  against  any  one 
for  carrying  on  a  business  injurious  to  the  health  of  those  in  the  vicin- 
ity, if  the  indictment  shall  charge  that  any  persons  have  actually  suf- 
fered in  their  health  from  the  exercise  of  such  business,  the  court  on 
the  application  of  those  interested  and  after  hearing  the  person  accused 
and  receiving  statements  on  oath  on  both  sides,  may  in  their  discretion 
enjoin  the  person  accused,  in  such  penalty  as  they  may  deem  reasona- 
ble, not  to  carry  on  the  said  business,  or  to  carry  it  on  in  a  place  or  in 
a  manner  that  will  not  prove  injurious  to  the  health  of  others  until  the 
trial;  and  if  a  conviction  shall  be  had  on  such  indictment;  the  injunc- 


CODE  OF  PROCEDURE.  485 

tion  shall  be  perpetual  in  conformity  with  the  provisions  of  the  third 
chapter  of  the  first  title  of  this  book. 

Art.  50.  In  like  manner  if  an  indictment  be  found  against  any  one 
for  carrying  on  a  manufacture  of  powder  or  other  dangerous  operation, 
contrary  to  the  provisions  of  the  Code  of  Crimes  and  Punishments, 
a  like  injunction,  and  an  order  for  the  removal  of  the  dangerous  sub- 
stance to  a  safe  distance  may  be  made  by  the  court  in  which  the  indict- 
ment is  found. 


CHAPTER  III. 


Of  suppressing  permanent  offences  against  the  public  enjoyment  of 
property  held  for  common  use  of  all  the  citizens. 

Art.  51.  If  any  one  shall  erect  any  building  or  make  any  other  per- 
manent obstruction  which  shall  prevent  the  free  use  of  any  public  pro- 
perty held  for  the  common  use  of  all  the  citizens,  and  which  shall  have 
been  in  such  common  use  for  twelve  months  next  preceding  the  time 
of  erecting  such  obstruction,  the  judge  of  the  court  of  the  highest  crim- 
inal jurisdiction  in  the  district  may  on  complaint  and  proof  of  the  facts 
above  stated,  cite  the  party  accused  of  making  such  obstruction,  to  ap- 
pear before  him,  and  in  a  summary  way  shall  take  evidence  of  the 
facts,  and  if  the  inconvenience  to  the  public  from  the  obstruction  be  so 
great,  as  in  his  opinion  to  render  it  improper  to  wait  the  event  of  a 
trial  for  the  offence,  and  the  fact  of  one  year's  previous  possession  and 
use  in  the  public  is  clearly  proved,  he  may  order  such  obstruction  to 
be  removed  by  the  sheriff. 

Art.  52.  No  further  penalty  can  be  imposed  until  a  conviction  take 
place,  on  an  indictment  or  information  for  the  offence. 

Art.  53.  If  no  indictment  or  information  be  filed  against  the  party 
whose  building  has  been  removed,  or  if  on  the  trial  he  shall  be  acquit- 
ted by  showing  title  to  the  property  on  which  it  was  erected,  he  is 
entitled  to  an  indemnity  from  the  person  making  the  complaint,  for 
any  damage  he  may  have  suffered  by  the  removal. 


CHAPTER  IV. 

Of  the  suppression  of  permanent  offences  against  morals  and  de- 
cency. 

Art.  54.   In  cases  of  publications  which  come  within  this  description 
of  offences,  the  suppressive  remedy  is  set  forth  in  the  article  of 

the  third  chapter  and  first  title  of  this  book  ;  if  the  offence  be  commit- 
ted by  indecent  exposure,  it  is  suppressed  on  complaint  and  arrest,  in 
the  manner  directed  for  other  offences,  and  by  taking  security  for  good 
behaviour. 


486  CODE  OF  PROCEDURE. 


CHAPTER  V. 


Of  suppressing  permanent  offences  to  reputation. 

Art.  55.  The  only  cases  and  the  only  manner  in  which  the  sup- 
pression of  the  offences  mentioned  in  the  title  of  this  chapter  can  be 
made,  are  these  detailed  in  the  articles  of  the  third  chapter 

and  first  title  of  this  book. 


CHAPTER  VI. 


Of  the  suppression  of  permanent  offences  affecting  the  person  by 
assault  and  battery. 

Art.  56.  The  continuance  of  assault  and  battery  may  be  suppressed 
in  the  manner  heretofore  indicated  in  this  and  in  the  Code  of  Crimes 
and  Punishments,  by  resistance  of  the  party  aggrieved,  or  of  those  who 
come  to  his  aid,  and  by  the  arrest  of  the  offender,  and  forcing  him  to 
give  security  to  keep  the  peace. 


CHAPTER  VII. 


Of  suppressing  offences  against  personal  liberty. 

Art.  57.  The  suppressive  remedy  for  offences  of  the  nature  indicated 
in  the  title  of  this  chapter,  is  by  writ  of  habeas  corpus  ;  the  nature  of 
which  remedy,  and  the  mode  of  applying  it,  are  detailed  in  the  follow- 
ing sections  of  this  chapter. 


SECTION  I. 

Definition  and  form  of  this  writ. 

Art.  58.  A  writ  of  habeas  corpus  is  an  order  in  writing,  issued  in 
the  name  of  the  state,  by  a  judge  or  court  of  competent  jurisdiction, 
directed  to  any  one  having  a  person  in  his  custody,  or  under  his  re- 
straint, commanding  him  to  produce  such  a  person  at  a  certain  time 
and  place,  and  to  state  the  reason  why  he  is  held  in  custody,  or  under 
restraint. 

Art.  59.  The  writ  of  habeas  corpus  is  to  be,  as  nearly  as  circum- 
stances will  permit,  in  the  following  form,  to  wit : — 


CODE  OF  PROCEDURE.  487 

The  stale  of  Louisiana  to  A.  B.  You  are  commanded  to  have  C.  D. 
in  your  custody,  as  is  said,  detained,  or  under  your  restraint,  kept,  be- 
fore E.  F.  judge  of,  (describing  the  office  of  the  magistrate  issuing  the 
writ,  or  if  issued  by  a  court,  inserting  the  style  of  such  court)  on  the 
day  of  at  o'clock,  in  the  forenoon  or  afternoon 

(as  the  case  may  be)  of  the  same  day,  at  (naming  the  place)  or  forth- 
with (as  the  case  may  be),  and  that  you  then  and  there  state  in  wri- 
ting, the  cause  of  detaining  the  said  person,  and  produce  your  authority 
for  so  doing,  and  hereof  you  are  not  to  fail  under  the  heavy  penalties 
denounced  by  law  against  those  who  disobey  this  writ.  E.  F.  judge, 
&c.  or  G.  H.  clerk  of  the  court  of,  &c. 

Art.  60.  The  writ  of  habeas  corpus  (if  issued  by  a  judge)  must  be 
signed  by  him,  or  (if  issued  by  a  court)  must  be  signed  by  the  clerk, 
and  sealed  with  the  seal  of  such  court. 

Art.  61.  The  proceedings  under  this  writ  are  considered  as  the 
most  effectual  safeguard  of  personal  liberty  against  public  or  private 
attempts  to  invade  it.  It  is  therefore  declared,  that  in  all  cases  where 
there  maybeany  doubt  on  the  construction  of  any  provisionin  this  chap- 
ter, that  construction  must  be  given  which  is  most  favourable  to  the 
person  applying  for  relief  under  it,  and  which  will  give  the  most  ex- 
tensive operation  in  all  cases,  to  the  remedies  hereby  provided  against 
illegal  restraint. 

Art.  62.  The  writ  of  habeas  corpus  is  not  to  be  disobeyed  for 'any 
defect  of  form.  It  rs  sufficient  ;  1st,  If  the  person  to  whom  it  is  di- 
rected, be  designated,  either  by  the  style  of  his  office  (if  he  have  any), 
or  by  such  other  appellation  or  description  as  may  make  it  understood 
by  one  of  common  understanding,  that  he  is  the  person  intended,  and 
any  one  who  may  be  served  with  this  writ,  who  has,  in  fact,  the  cus- 
tody of  the  person  directed  to  be  produced,  or  who  exercises  a  re- 
straint over  him,  cannot  avoid  obedience  thereto,  although  the  writ 
may  be  directed  to  him  by  a  wrong  name,  a  false  description,  or  even 
although  it  be  directed  to  another.  2d,  It  is  sufficient  if  the  person 
who  is  directed  to  be  produced,  be  designated  by  name,  or  if  the  name 
be  unknown  or  uncertain,  if  he  be  described  in  any  other  way  so  as  to 
make  it  be  understood  by  one  of  common  understanding,  who  is  the 
person  intended.  3d,  The  name  and  office  of  the  judge,  or  the  STYLE 
of  the  court  issuing  the  writ,  must  be  either  stated  in  the  body  of  the 
writ,  or  by  the  signature  thereof,  so  as  to  show  sufficiently  the  author- 
ity for  issuing  the  same.  If  the  time  of  making  the  return  should  be 
omitted,  the  writ  is  to  be  obeyed  without  delay  ;  if  no  place  be  in- 
serted, it  must  be  obeyed,  by  making  the  return  at  the  dwelling  of 
the  judge  or  the  usual  place  of  holding  the  sessions  of  the  court,  which- 
ever issued  the  same. 

Art.  63.  The  insertion  of  words  in  the  writ,  other  than  those  con- 
tained in  the  above  given  form,  or  the  omission  of  any  which  are 
inserted  in  such  form,  shall  not  vitiate  the  writ,  provided  the  substan- 
tial parts  enumerated  in  the  preceding  article  are  preserved. 


488  CODE  OF  PROCEDURE. 


SECTION  II. 

Who  has  authority  to  issue  writs  of  habeas  corpus,  and  in  what  case  and  how  they  are 

to  be  applied  for. 

Art.  64.  The  district  courts  and  the  criminal  court,  as  now  estab- 
lished, and  all  other  courts  which  may  hereafter  be  established,  having 
jurisdiction  in  civil  causes,  to  the  amount  of  more  than  three  hundred 
dollars,  or  of  criminal  cases  where  the  punishment  is  more  than  one 
year's  imprisonment  at  hard  labour  ;  and  the  judges  of  such  courts 
have  power  to  issue  writs  of  habeas  corpus,  directed  to  acy  person 
within  their  respective  districts. 

Art.  65.  When  the  judge  of  any  district  is  absent,  interested  or  inca- 
pable, from  whatever  cause,  of  acting,  and  there  is  no  judge  of  a  crim- 
inal court  in  such  district,  a  writ  of  habeas  corpus  may  be  issued  by  a 
judge  of  competent  authority,  in  any  of  the  adjoining  districts  ;  provi- 
ded, the  absence,  interest  or  inability  of  the  judge  of  the  district,  where 
the  illegal  imprisonment  is  said  to  exist,  be  made  to  appear  by  the 
oath  of  the  party  applying,  or  other  sufficient  evidence. 

Art.  66.  The  writ  of  habeas  corpus  may  be  obtained  by  petition 
addressed  to  any  court  or  judge,  having  authority  to  grant  the  same, 
signed  either  by  the  party,  for  whose  relief  it  is  intended,  or  any  other 
person  on  his  behalf.  The  petition  must  state  in  substance  : 

1.  That  the  party  is  illegally  imprisoned  or  restrained  in  his  liberty, 
and  by  whom,  naming  both  parties,  if  their  names  are  known,  or  de- 
signating or  describing  them,  if  they  are  not. 

2.  If  the  confinement  or  restraint  is  by  virtue,  or  under  colour  of 
any  judicial  writ,  order  or  process,  a  copy  thereof  must  be  annexed, 
or  it  must  be  averred  that  such  copy  has  been  demanded  and  refused. 

3.  If  the  confinement  or  restraint  be  by  virtue  of  judicial  process, 
regular  in  form,  but  illegally  obtained  or  executed,  it  must  be  set 
forth  in  what  the  illegality  consists. 

4.  If  the  confinement  or  restraint  is  not  by  virtue  of  any  judicial 
process,  then  the  petitioner  need  only  state  that  the  party  is  illegally 
confined  or  restrained. 

5.  The  petition  must  contain  a  prayer  for  the  writ  of  habeas  corpus. 

6.  It  must  be  sworn  to  be  true,  at  least  according  to  the  belief  of  the 
person  making  the  application. 

Art.  67.  Any  court  or  judge  empowered  to  grant  writs  of  habeas 
corpus  on  receiving  such  petition,  shall,  without  delay,  grant  the 
same  ;  unless  it  appear  from  the  petition  itself,  or  from  documents  an- 
nexed, that  the  party  can  neither  be  discharged,  nor  admitted  to  bail, 
nor  in  any  other  manner  relieved. 

Art.  68.  A  writ  of  habeas  corpus  is  granted  in  court  by  the  signa- 
ture of  the  clerk,  and  affixing  the  seal  of  the  court  to  the  writ.  It  is 
granted  by  the  judge,  by  his  signature  only. 

Art.  69.  Whenever  the  court  or  judge,  duly  authorized,  shall  know, 
or  have  reason  to  believe,  that  any  one,  in  the  district  of  such  judge  or 
court,  is  illegally  confined  or  restrained  in  his  liberty,  they  shall  issue 
a  writ  of  habeas  corpus  for  his  relief,  although  no  petition  be  presented, 
or  application  made  for  such  writ. 


CODE  OF  PROCEDURE.  489 

Art.  70.  Whenever  it  shall  appear  by  the  oath  of  a  credible  wit- 
ness, or  other  satisfactory  evidence,  that  any  one  is  held  in  illegal  con- 
finement or  custody,  and  there  is  good  reason  to  believe  that  he 
will  be  carried  out  of  the  state,  or  suffer  some  irreparable  injury,  before 
he  can  be  relieved  in  the  usual  course  of  law  ;  or  whenever  a  writ  of 
habeas  corpus  has  been  issued  and  disobeyed,  any  court  or  judge,  em- 
powered to  issue  writs  of  habeas  corpus,  shall  make  a  warrant,  directed 
to  any  sheriff  or  other  executive  officer  of  justice,  or  any  other  person 
who  may  agree  to  execute  the  same,  commanding  him  to  take  and 
bring  the  prisoner,  so  illegally  confined,  before  such  judge,  to  be  dealt 
with  according  to  law. 

Art.  71.  Where  the  proof  mentioned  in  the  preceding  article,  is 
sufficient  to  justify  an  arrest  of  the  person,  having  the  prisoner  in  cus- 
tody for  any  offence  against  the  provisions  of  the  Code  of  Crimes  and 
Punishments,  in  favour  of  personal  liberty,  the  judge  may  add  to  the 
warrant  an  order  of  arrest  of  such  person  for  such  offence,  who  shall 
be  brought  before  the  judge,  and  shall  be  examined  and  committed, 
bailed  or  discharged,  according  to  the  directions  contained  in  the  first 
title  of  the  second  book  of  this  code. 

Art.  72.  Any  officer,  or  other  person  to  whom  the  warrant  men- 
tioned in  the  two  last  preceding  articles  shall  be  delivered;  shall  exe- 
cute the  same  by  bringing  the  person  held  in  custody  (and  the  person 
who  detains  him,  if  so  commanded  by  the  warrant),  before  the  judge 
or  court,  issuing  the  same,  who  shall  inquire  into  the  cause  of  his  im- 
prisonment or  restraint,  and  either  discharge,  bail,  or  remand  the 
party  into  custody,  as  directed  in  this  chapter  in  cases  of  returns  of 
writs  of  habeas  corpus. 

Art.  73.  The  person,  to  whom  the  warrant  mentioned  in  the  three 
last  preceding  articles  may  be  directed,  shall,  for  the  execution  thereof, 
have  the  same  powers,  and  be  bound  by  the  same  rules  as  are  desig- 
nated in  the  chapter  of  this  code  which  relates  to  the  execution  of  war- 
rants of  arrest ;  but  the  said  warrant  may  be  executed  in  any  parish  of 
the  state,  into  which  the  party  for  whose  relief  it  issued,  may  have 
been  carried,  without  any  indorsement  of  such  writ,  as  is  required  in 
cases  of  arrest. 

Art.  74.  No  fees  or  emolument  whatever  shall  be  received  by  any 
judge,  clerk  or  other  officer,  for  granting  a  writ  of  habeas  corpus,  but 
the  expences  of  conducting  the  prisoner  before  the  court  or  judge,  must 
be  tendered  to  the  person  having  charge  of  him,  at  the  rate  of  twenty- 
five  cents  for  each  mile,  unless  the  judge  granting  the  writ,  be  satisfied 
that  the  applicant  is  unable  to  pay  such  expences,  and  shall  by  writing 
on  the  back  of  said  writ,  direct  that  they  be  advanced  by  the  person 
having  the  custody  of  the  prisoner,  and  the  judge  may  on  the  return, 
either  direct  that  such  expenses  be  paid  by  either  party,  or  by  the  state, 
or  the  parish,  as  circumstances  may  render  proper. 

Art.  75.  In  all  cases  where  the  law  does  not  otherwise  specially 
provide,  every  one  has  a  right  to  dispose  of  his  own  person  UNCON- 
TROLLED by  any  other  individual.  When  the  right  is  interfered  with 
by  detaining  the  person  against  his  will,  within  certain  limits,  either 
by  threats,  by  the  fear  of  injury,  or  by  bonds,  or  other  physical  and 
material  obstacles,  the  party  is  said  to  be  CONFINED  or  IMPRISONED  and 
to  be  in  CUSTODY  of  the  person  who  continues  such  detention.  A  per- 
son also  has  the  CUSTODY  of  another,  who  does  not  confine  him  within 
3M 


490  CODE  OF  PROCEDURE. 

certain  limits,  but  by  menace  or  force,  directs  his  movements,  and 
obliges  him  against  his  will,  to  go  or  remain  where  he  directs. 

When  no  such  detention  within  certain  limits  exist,  but  an  authority 
is  claimed  and  exercised  of  general  control  over  the  actions  of  the 
party  against  his  consent,  he  is  said  to  be  under  the  RESTRAINT  of  the 
person  exercising  such  control. 

In  all  cases  whatever,  where  such  imprisonment,  confinement,  cus- 
tody or  restraint  exists,  which  is  not  authorised  by  positive  law,  or  is 
exercised  in  a  mode  or  degree  not  authorised  by  law,  the  party  ag- 
grieved may  have  relief  by  writ  of  habeas  corpus. 

Art.  76.  When  a  person  claiming  to  be  free,  shall  be  held  as  a  slave, 
relief  may  be  granted  by  habeas  corpus,  and  his  discharge  shall  be 
full  evidence  of  his  liberty  against  the  person  claiming  him  as  a  slave, 
unless  he  shall  within  ten  days  after  such  discharge,  institute  a  civil 
suit,  in  which  he  may  obtain  a  sequestration  of  the  body  of  the  party 
so  discharged,  provided  he  give  the  security  required  by  law  in  case  of 
SEQUESTRATION,  and  produce  such  evidence  of  his  property,  as  will 
satisfy  the  judge  of  any  court  having  cognizance  of  the  cause,  that  the 
party  is  a  slave,  and  that  the  plaintiff  is  entitled  to  his  services. 

But  unless  such  suit  be  instituted,  within  the  time  aforesaid,  the  party 
who  held  him  as  a  slave,  shall  be  forever  barred  from  making  any  claim 
to  the  services  of  the  person  so  discharged  ;  and  on  the  trial  of  such 
suit,  the  discharge  shall  be  presumptive  evidence  of  the  liberty  of  the 
party  discharged,  and  throw  the  burthen  of  proof  on  the  person  claim- 
ing him  as  a  slave. 


SECTION  III. 

How  the  writ  of  habeas  corpus  is  served  and  returned. 

Art.  77.  This  writ  is  served  by  delivering  the  original  to  the  perr 
son  to  whom  it  is  directed,  or  to  him  in  whose  custody,  or  under  whose 
restraint  the  party  for  whose  relief  it  is  intended,  is  detained.  If  he 
refuse  to  receive  it,  he  must  be  informed  verbally  of  the  purport  of  the 
writ.  If  he  conceal  himself,  or  refuse  admittance  to  the  person  charged 
with  the  service,  the  writ  must  be  fixed  in  some  conspicuous  place  on 
the  outside,  either  of  his  dwelling-house,  or  of  the  place  where  the 
party  is  confined. 

Art.  78.  Any  free  white  male  person,  capable  of  giving  testimony, 
may  serve  the  writ. 

Art.  79.  Its  service  is  proved  by  the  declaration  on  oath,  and  in 
writing  of  the  person  making  the  service. 

Art.  80.  It  is  the  duty  of  the  person  upon  whom  a  writ  of  habeas 
corpus  is  served,  whether  such  writ  be  directed  to  him  or  not,  to  obey 
and  return  the  same  without  delay. 

Art.  81.  This  is  done  by  producing,  as  directed,  the  person  in- 
tended to  be  released,  if  in  his  custody,  or  under  his  power  or  control, 
and  by  making  a  return  in  writing  on  the  back  of  the  writ,  or  annexed 
to  it,  which  must  state  plainly  and  unequivocally: 

1.  Whether  he  have  or  have  not  the  party  in  his  power  or  custody, 
or  under  his  restraint. 


CODE  Of1  PROCEDURE.  491 

2.  By  virtue  of  what  authority,  or  for  what  cause  he  took  or  detains 
him. 

3.  If  he  had  the  party  in  his  power  or  custod}^,  or  under  his  restraint 
at  any  time  within  three  days  prior  to  the  date  of  the  writ,  but  has 
transferred  such  custody  or  restraint  to  another  ;  then  stating  particu- 
larly, to  whom,  at  what  time,  for  what  cause,  and  by  what  authority 
such  transfer  took  place. 

4.  If  he  have  the  party  in  his  custody,  or  under  his  restraint,  by 
virtue  of  any  writ  or  warrant,  or  other  written  authority,  the  same 
must  be  annexed  to  the  return. 

Art.  82.  The  return  must  be  signed  by  the  persons  making  the 
same,  and  attested  on  oath. 

Art.  83.  Whenever  a  writ  of  habeas  corpus  shall  be  taken  out  for 
any  one  in  custody,  by  virtue  of  an  order  or  execution  issued  for  car- 
rying into  effect  the  final  judgment,  sentence  or  decree  of  any  COMPE- 
TENT tribunal,  either  of  civil  or  criminal  jurisdiction,  the  officer  having 
legal  custody  of  such  person,  need  not  produce  him,  unless  specially 
directed  to  do  so,  notwithstanding  such  execution  or  order,  in  the  cases 
hereafter  provided  for ;  but  it  shall  be  sufficient  to  make  a  return  in 
writing,  annexing  the  order  or  execution,  by  virtue  of  which  the  party 
is  detained.  Provided  always:  that  for  any  special  cause  for  which  re- 
lief may  legally  be  granted,  either  set  forth  in  the  affidavit,  on  which 
the  writ  of  habeas  corpus  is  issued,  or  appearing  on  the  return,  the 
judge  may  order  the  prisoner  to  be  brought  up,  notwithstanding  such 
final  judgment,  sentence  or  decree,  and  may  proceed  to  give  the  relief 
to  which  the;party  is  entitled. 

Art.  84.  The  return  to  a  writ  of  habeas  corpus  must  be  made 
within  twelve  hours  after  the  service,  or  sooner,  if  required  by  the  writ, 
if  the  party -to  be  relieved  by  it  is  within  twelve  miles  of  the  place  of 
return.  If  he  be  at  a  greater  distance,  then  he  must  make  the  return, 
allowing  one  day  for  every  twenty  miles  distance,  which  the  party 
must  travel,  in  order  to  make  the  return,  and  in  proportion  for  a  greater 
or  less  distance. 


SECTION  IV. 


The  mode  of  enforcing  a  return. 

Art.  85.  When  it  appears'  to  the  court  or  judge,  issuing  the  writ, 
that  it  has  been  duly  served,  if  the  person  intended  to  be  relieved,  is 
not  produced  at  the  time,  which  is  required  by  the  provisions  of  this 
chapter,  the  judge,  who  issued  the  writ,  or  if  issued  by  a  court,  the 
said  court,  or  any  judge  thereof,  shall  make  a  warrant,  directed  to  any 
executive  officer  of  justice,  or  other  person  willing  to  execute  the  same, 
commanding  him  to  take  the  person,  who  has  disobeyed  the  writ,  into 
custody,  and  to  bring  him  before  the  judge  or  court,  which  issued  the 
warrant,  to  be  dealt  with  according  to  law  ;  and  if,  on  being  brought 
before  the  court  or  judge,  he  shall  refuse  to  return  the  writ,  or  does 
not  produce  the  person  he  was  ordered  to  bring  up,  in  the  cases  wherein 
he  is  by  the  provisions  of  this  chapter  obliged  to  produce  him,  he  shall 
be  committed  to  prison,  and  remain  there  until  the  effect  of  the  writ 


492  CODE  OF  PROCEDURE. 

shall  be  produced,  and  until  he  shall  pay  all  the  costs  of  the  procedure, 
and  shall  moreover  be  liable  to  the  penalties  imposed  by  law,  for  dis- 
obedience to  the  said  writ,  and  for  any  other  offence  against  personal 
liberty,  of  which  he  may  have  been  guilty,  in  the  imprisonment  or  de- 
tention complained  of. 

Art.  86.  In  the  case  provided  for  by  the  last  preceding  article,  the 
person  intended  to  be  relieved  by  the  writ  of  habeas  corpus,  must 
be  brought  up  in  the  manner  directed  by  the  second  section  of  this 
chapter. 

Art.  87.  Whenever,  from  sickness  or  infirmity  of  the  person  di- 
rected to  be  produced,  he  cannot,  without  danger  of  his  life,  be  brought 
before  the  judge,  the  party  in  whose  custody  he  is,  may  state  that  fact 
in  the  return  of  the  writ;  and  if  it  be  made  to  appear,  by  the  certificate 
of  a  physician  regularly  admitted  to  practice,  and  the  testimony  of  two 
other  witnesses,  and  the  signature  of  the  party  intended  to  be  relieved, 
if  he  can  write;  then,  if  the  judge  be  satisfied  of  the  truth  of  the  allega- 
tion, and  if  the  return  be  otherwise  sufficient,  it  shall  be  good  without 
the  production  of  the  person,  and  the  judge  may  either  go  to  the  place 
where  the  prisoner  is  confined,  if  he  think  justice  requires  it,  or  he  may 
proceed,  when  he  is  satisfied  with  the  truth  of  the  allegation,  as  in  other 
cases,  to  decide  on  the  return. 

Art.  88.  The  death  of  the  prisoner,  or  any  other  INEVITABLE  ACCI- 
DENT, or  SUPERIOR  FORCE,  will  be  a  good  return  to  excuse  the  produc- 
tion of  the  prisoner  ;  provided  proof  of  such  fact  be  given  to  the 
perfect  satisfaction  of  the  court  or  judge,  issuing  the  writ  ;  but  this  as 
well  as  any  other  matter  alleged  in  any  return,  may  be  contested  in  the 
manner  hereinafter  mentioned. 

Art.  89.  When  any  one  shall  die,  while  under  imprisonment,  it  shall 
be  the  duty  of  the  person  in  whose  custody  he  was  at  the  time  of  his 
death,  without  any  delay,  to  give  notice  thereof  to  the  coroner  of  the 
parish,  or  in  case  of  his  absence  or  inability  to  attend,  to  a  justice  of 
the  peace,  who  shall  summon  a  jury  of  householders  in  the  said  parish, 
to  consist  of  not  less  than  nine,  nor  more  than  eighteen,  who  shall  view 
the  body,  and  being  first  duly  sworn,  shall  inquire  into  the  manner  in 
which  the  person  came  by  his  death  ;  and  the  said  jury  shall,  in  all 
cases,  cause  the  body  to  be  inspected  by  a  surgeon  or  a  physician  duly 
admitted,  and  examine  him  as  well  as  all  other  persons  they  may  call 
as  witnesses,  and  if  they  do  not  appear,  compel  their  attendance  by 
warrant.  And  the  said  jury,  or  a  majority  of  them,  shall  make  and 
sign  an  inquest  or  certificate,  stating  that  they  have  examined  witnesses, 
and  are  satisfied  that  the  body  produced  to  them,  is  that  of  such  a  person 
(naming  him)  and  setting  forth  the  manner  in  which  he  came  by  his 
death,  unless  it  shall  appear  to  the  said  inquest,  that  the  death  of  such 
prisoner  was  caused  by  a  crime  ;  in  which  case  the  coroner  or  justice 
shall  send  the  inquest  to  the  court  having  cognizance  of  the  crime,  and 
shall  immediately  issue  a  warrant  for  the  arrest  and  commitment  of  the 
party,  who  shall  appear  by  such  inquest  to  be  guilty.  And  wherever 
the  death  of  a  prisoner  is  returned  as  a  reason  for  not  producing  him 
in  the  return  of  a  habeas  corpus,  the  inquest  proving  such  death  must 
be  annexed  to  the  return. 


CODE  OF  PROCEDURE.  493 


SECTION  V. 

Of  the  proceedings  on  the  return. 

Art  90.  The  judge  or  court  before  whom  a  person  is  brought  on  a 
habeas  corpus,  shall  examine  the  return  and  the  papers,  if  any,  referred 
to  in  it,  and  if  no  legal  cause  be  shown  for  the  imprisonment  or  re- 
straint ;  or  if  it  appear,  although  legally  committed,  he  has  not  been 
prosecuted,  tried  or  sentenced,  within  the  periods  for  those  purposes 
respectively  limited  by  law,  or  that  for  any  other  cause  the  imprison- 
ment or  restraint  cannot  legally  be  continued,  he  shall  discharge  him 
from  the  custody  or  restraint  under  which  he  is  held. 

Art.  91.  If  it  appear  that  the  party  has  been  legally  committed  for 
an  offence,  BAILABLE  OF  RIGHT,  or  if  he  appear  by  the  testimony  offer- 
ed with  the  return,  to  be  guilty  of  such  on  offence,  although  the  com- 
mitment be  irregular,  or  there  be  no  commitment,  he  shall  bail  the  pri- 
soner, if  good  bail  be  offered. 

Art.  92.  In  cases  which  are  not  BAILABLE  OF  BIGHT,  the  judge  has  a 
discretion,  the  exercise  of  which  involves  a  high  responsibility.  It 
must  of  necessity  be  left  to  his  sagacity  and  prudence  to  distinguish 
between  those  presumptions,  which  leave  a  strong  probability  of  guilt 
and  those  which  are  too  slight  to  justify  imprisonment,  previous  to  the 
trial.  In  the  latter  case  only  of  presumptions,  which  are  not  strong, 
he  may  admit  to  bail.  This  discretion,  however,  cannot  be  exercised 
at  all.  1st,  Where  the  crime  has  been  freely  confessed  before  a  magis- 
trate. 2d,  Where  it  is  positively  and  directly  charged  by  the  oath  of 
a  credible  witness  present  at  the  act.  3d,  Where  an  indictment  has 
been  found,  charging  the  prisoner  with  an  offence  not  BAILABLE  OF 

RIGHT. 

Art.  93.  If  the  party  be  not  entitled  to  his  discharge,  and  cannot 
be  bailed,  the  judge  must  remand  him  to  the  custody,  or  place  him  un- 
der the  restraint  from  which  he  was  taken,  if  such  custody  or  restraint 
be  legal,  or  otherwise  place  him  in  the  custody  or  power  of  such  per- 
son, as  by  the  law  of  the  state,  he  is  entitled  thereto. 

Art.  94.  If  the  judge  cannot  immediately  determine  the  case,  he 
may  until  judgment  be  given  on  the  return,  either  place  him  in  the 
custody  of  the  sheriff  of  the  parish  where  the  return  is  made,  or  place 
him  under  such  care,  and  in  such  custody,  as  his  age  or  other  circum- 
stances may  require. 

Art.  95.  If  it  be  shown  by  the  return  that  the  person  is  detained 
by  virtue  of  an  informal  or  void  commitment,  yet  if  from  the  docu- 
ments on  which  it  was  made,  or  from  other  proof,  it  appear  that  there 
is  good  cause  for  commitment,  the  prisoner  shall  not  be  discharged — 
but  the  judge  or  court  before  whom  he  is  brought,  shall  either  commit 
him  for  trial,  or  admit  him  to  bail,  in  cases  where,  by  law,  he  may  be 
bailed. 

Art.  96.  In  order  to  enable  the  judge,  before  whom  a  return  to  a 
writ  of  habeas  corpus  is  made,  to  perform  the  duty  required  by  the  last 
preceding  section,  the  officer  having  the  custody  of  any  person  com- 
mitted for  any  offence,  for  whose  relief  such  writ  is  granted,  must  show 
the  same  to  the  magistrate  who  made  the  commitment,  or  to  the  clerk 
of  the  court,  (if  the  papers  relative  to  the  commitment  have  been  deliv- 


494  CODE  OF  PROCEDURE, 

ered  lo  him,)  and  it  shall  thereupon  be  the  duty  of  such  magistrate  or 
clerk,  to  attend  at  the  hour  and  place  of  the  return,  and  exhibit  to 
the  judge  or  court,  to  which  the  same  is  made,  all  the  proofs  and  docu- 
ments relative  to  the  said  commitment ;  and  if  such  magistrate  or  clerk 
neglect  to  attend,  the  judge  or  court  is  authorized,  on  proof  of  his 
having  had  the  notice  required  by  this  article,  to  enforce  his  attendance 
by  warrant  of  arrest,  and  the  party  when  arrested,  shall  be  kept  in 
custody  until  he  perform  the  duty  required  by  this  article. 

Art.  97.  When  it  appears  by  the  return  that  the  person  soliciting 
his  discharge,  is  in  custody,  on  any  civil  process,  or  that  any  other  per- 
son has  an  interest  in  continuing  his  imprisonment  or  restraint,  no  order 
shall  be  given  for  his  discharge,  until  it  appear  that  the  plaintiff,  in 
such  civil  suit,  or  the  person  so,  interested,  or  their  attorneys  or  agents, 
if  either  are  within  twenty  miles,  have  had  reasonable  notice  of  the 
issuing  of  such  writ  of  habeas  corpus. 

Art.  98.  The  party  brought  before  the  judge  on  the  return  of  the 
habeas  corpus,  may  deny  any  of  the  material  facts  set  forth  in  the 
return,  or  allege  any  fact,  to  show  either  that  the  imprisonment  or  de- 
tention is  unlawful,  or  that  he  is  entitled  to  his  discharge,  which  alle- 
gations or  denials  must  be  on  oath  ;  and  thereupon  the  judge  shall 
proceed  in  a  summary  way,  to  hear  testimony,  and  the  arguments,  as 
well  of  the  party  interested,  civilly,  if  any  there  be,  as  of  the  prisoner, 
and  the  person  who  holds  him  in  custody,  and  shall  dispose  of  the  pri- 
soner as  the  case  may  require. 

Art.  99.  If  it  appear  on  the  return,  that  the  prisoner  is  in  custody 
by  virtue  of  process  from  any  court  legally  constituted,  he  can  be  dis- 
charged only  in  one  of  the  following  cases  : 

1.  Where  the  court  has  exceeded  the  limits  of  its  jurisdiction,  either 
as  to  matter,  place,  sum  or  person. 

2.  Where,  though  the  original  imprisonment  was  lawful,  yet  by 
some  act,  omission  or  .event,  which  has  taken  place  afterwards,  the 
party  has  become  entitled  to  his  liberty. 

3.  Where  the  process  is  defective  in  some  substantial  form  required 
by  law. 

4.  Where  the  process,  though  in  proper  form,  has  been  issued  in  a 
case,  or  under  circumstances  where  the  law  does  not  allow  process  or 
orders  for  imprisonment,  or  arrest  to  issue. 

5.  Where,  although  in  proper  form,  the  process  has  been  issued  or 
executed  by  a  person  either  unauthorised,  or  improperly  authorised  to 
issue  or  execute  the  same,  or  where  the  person  having  the  custody  of 
the  prisoner  under  such  process,  is  not  the  person  empowered  by  law 
to  detain  him. 

6.  Where  the  process  appears  to  have  been  obtained  by  false  preten- 
ces or  bribery. 

7.  Where  there  is  no  general  law,  nor  any  judgment,  order  or  decree 
of  a  court,  to  authorise  the  process,  if  in  a  civil  suit,  nor  any  conviction, 
if  in  a  criminal  proceeding. 

But  no  judge  or  court,  on  the  return  of  a  habeas  corpus,  shall  in 
any  matter  inquire  into  the  legality  or  justice  of  a  judgment  or  decree 
of  a  court  legally  constituted,  and  in  all  cases  where  it  appears  that 
there  is  a  sufficient  legal  cause  for  the  commitment  of  the  prisoner 
for  an  offence,  although  it  may  have  been  informally  made,  or  with- 
out due  authority,  or  the  process  may  have  been  executed  by  a  per- 


CODE  OF  PROCEDURE.  495 

son  not  duly  authorised,  the  judge  shall  make  a  new  commitment,  in 
proper  form,  and  directed  to  the  proper  officer,  or  admit  the  party  to 
bail  if  the  case  be  bailable. 

Art.  100.  The  order  of  discharge  made  by  a  court  or  judge,  on  the 
return  of  a  habeas  corpus,  has  no  other  effect  than  that  of  restoring 
the  party  to  liberty,  and  securing  him  from  any  future  imprisonment 
or  restraint  for  the  same  ;  it  is  not  conclusive,  as  to  any  other  civil 
right,  except  with  respect  to  persons  claimed  as  slaves,  which  is  herein 
specially  provided  for. 

Art.  101.  No  person  who  has  been  discharged  by  order  of  a  court  or 
judge,  on  a  habeas  corpus,  shall  be  again  imprisoned,  restrained  or 
kept  in  custody  for  the  same  cause,  unless  he  be  afterwards  indicted 
for  the  same  offence.  But  it  shall  not  be  deemed  to  be  the  same  cause- 

1.  If  after  a  discharge  for  defect  of  proof,  or  for  any  material  defect 
in  the  commitment,  in  a  criminal  case,  the  prisoner  should  be  again  ar- 
rested  on  sufficient  proof,  and  committed   by  legal  process  for  the 
same  offence. 

2.  If  in  a  civil  suit,  the  party  has  been  discharged  for  any  illegality 
in  the  judgment  or  process,  and  is  afterwards  imprisoned  by  legal  pro- 
cess, for  the  same  cause  of  action. 

3.  Generally,  whenever  the  discharge  has  been  ordered  on  account 
of  the  non-observance  of  any  of  the  forms  required  by  law,  the  party 
may  be  a  second  time  imprisoned,  if  the  cause  be  legal,  and  the  forms 
required  by  law  observed. 

Art.  102.  When  a  judge,  authorized  to  grant  writs  of  habeas  corpust 
shall  be  satisfied  that  any  person  in  legal  custody,  on  a  charge  for  any 
offence,  is  afflicted  with  a  disease,  which  will  render  a  removal  necess- 
ary for  the  preservation  of  his  life,  such  judge  may  order  his  removal, 
on  his  giving  bail  with  two  securities,  in  such  sum  as  shall  be  ordered 
by  the  judge,  that  he  will  surrender  himself  to  the  same  custody,  when- 
ever he  shall  be  thereunto  required,  or  the  judge  may  in  such  case, 
where  the  prisoner  is  manifestly  unable  to  procure  bail,  put  him  in  the 
custody  of  an  executive  officer  of  justice,  whose  duty  it  shall  be  to 
watch  over  the  said  prisoner  in  the  place  to  which  he  may  be  removed, 
to  prevent  his  escape.  Provided,  that  the  fact  of  such  disease,  and 
the  necessity  of  removal,  shall  appear  by  the  oaths  of  two  physicians 
or  surgeons  duly  admitted  to  practice,  and  that  the  physican  who  shall 
attend  on  such  prisoner  after  his  removal,  shall  also  take  an  oath  that 
he  will  give  notice  to  a  magistrate  as  soon  as  in  his  opinion  the  said 
prisoner  may  safely  be  returned  to  his  imprisonment,  which  magis- 
trate shall,  on  receiving  such  notice,  issue  a  warrant  for  his  removal  to 
the  place  in  which  he  was  formerly  confined. 


SECTION  VI. 

General  provisions. 

Art.  103.  No  person  shall  be  discharged  under  the  provisions  of  this 
chapter,  who  is  in  custody  on  a  commitment  for  any  offence  exclusively 
cognizable  by  the  courts  of  the  United  States,  or  by  order,  execution  or 
process,  issuing  out  of  such  courts,  in  cases  where  they  have  jurisdic- 
tion, or  who  is  held  by  virtue  of  any  legal  engagement,  or  enlistment  in 


496  CODE  OF  PROCEDURE. 

the  army,  or  who,  being  subject  to  the  rules  and  articles  of  war,  is  con- 
fined by  any  one  legally  acting  under  the  authority  thereof,  or  who 
is  held  as  prisoner  of  war,  under  the  authority  of  the  United  States. 

Art.  104.  There  is  no  other  writ  of  habeas  corpus  known  in  the  law 
of  this  state,  but  that  described  and  provided  for  in  this  chapter. 
Courts  having  occasion  to  direct  the  production  of  prisoners  before 
them,  either  to  prosecute,  to  give  testimony,  or  for  any  other  purpose 
than  that  of  examining  into  the  cause  of  their  imprisonment,  may  com- 
mand the  production  of  such  prisoners  by  an  order  of  court,  entered 
on  their  minutes,  and  certified  to  the  officer  having  charge  of  such 
prisoner. 


SECTION  VII. 

Penalties  for  the  breaches  of  the  duties  enjoined  by  this  chapter. 

Art.  105.  Any  judge  empowered  by  this  chapter,  to  issue  writs  of 
habeas  corpus,  who  shall  refuse  to  issue  such  writ,  when  legally  ap- 
plied to,  in  a  case  where  such  writ  may  lawfully  issue,  or  who  shall 
unreasonably  delay  the  issuing  of  such  writ,  or  who,  in  cases  where 
such  writ  is  allowed  to  issue  without  any  proof,  shall  WILFULLY  omit 
to  issue,  or  wilfully  and  unreasonably  delay  the  issuing  such  writ, 
shall  for  every  offence  be  fined  in  the  sum  of  two  thousand  dollars. 

Art.  106.  Any  judge  so  authorized,  who  shall  refuse,  or  wilfully 
omit  to  perform,  any  other  of  the  duties  imposed  on  him  by  this  chap- 
ter, or  shall  unreasonably  delay  the  performance  thereof,  by  which  re- 
fusal, omission  or  negligence,  any  illegal  imprisonment  is  caused  or 
prolonged,  shall  be  fined  in  the  sum  of  one  thousand  dollars. 

Art.  107.  Any  executive  officer  of  justice  to  whom  a  writ  of  habeas 
corpus,  or  any  other  warrant,  writ  or  order,  authorized  by  this  chap- 
ter, shall  be  directed,  delivered  or  tendered,  who  shall  refuse,  or 
neglect  to  serve  or  execute  the  same,  as  by  this  chapter  is  directed, 
or  who  shall  unreasonably  delay  the  service  or  execution  thereof,  shall 
be  fined  in  the  sum  of  one  thousand  dollars. 

Art.  108.  Any  one  having  the  person  in  his  custody,  or  under  his 
restraint,  power  or  control,  for  whose  relief  a  writ  of  habeas  corpus 
is  issued,  who,  with  the  intent  to  avoid  the  effect  of  such  writ,  shall 
transfer  such  person  to  the  custody,  or  place  him  under  the  power  or 
control  of  another,  or  shall  conceal  him,  or  change  the  place  of  his 
confinement,  with  intent  to  avoid  the  operation  of  such  writ,  or  with 
intent  to  remove  him  out  of  the  state,  shall  be  fined  in  the  sum  of  two 
thousand  dollars,  and  may  be  imprisoned  at  hard  labour,  not  less  than 
one  nor  more  than  five  years. 

Art.  109.  In  a  prosecution  for  any  penalty  incurred,  under  the  last 
preceding  article,  it  shall  not  be  necessary  to  show  that  the  writ  of 
habeas  corpus  had  issued  at  the  time  of  the  removal,  transfer  or  con- 
cealment therein  mentioned,  if  it  be  proved  that  the  acts  therein  for- 
bidden, were  done  with  the  intent  to  avoid  the  operation  of  such  writ. 

Art.  110.  Any  one  having  the  person  for  whose  relief  a  writ  of  habeas 
corpus  is  issued,  in  his  custody,  or  under  his  power  or  control,  who, 
(without  being  guilty  of  any  of  the  acts  made  punishable  by  the  last 


CODE  OF  PROCEDURE.  497 

preceding  article)  shall,  after  being  legally  served  with  such  writ,  neg- 
lect or  refuse  to  produce  such  person,  in  cases  where,  by  the  provi- 
sions of  this  chapter,  he  is  bound  to  produce  him,  shall  be  fined  in 
the  sum  of  one  thousand  dollars. 

Art  111.  Any  person  to  whom  a  writ  of  habeas  corpus  is  directed, 
and  on  whom  it  is  duly  served,  who  shall  neglect  or  refuse  to  make 
a  return  thereto,  in  the  manner  directed  by  the  third  section  of  this 
chapter,  shall  be  fined  in  the  sum  of  five  hundred  dollars,  even  if  he 
have  not  the  party  whom  it  is  intended  to  relieve  in  his  custody,  or 
under  his  power  or  control. 

Art.  112.  Any  sheriff  or  his  deputy,  any  jailor  or  coroner,  having 
custody  of  any  prisoner,  committed  on  any  civil  or  criminal  process 
of  any  court  or  magistrate,  who  shall  neglect  to  give  such  prisoner  a 
copy  of  the  process,  order  or  commitment,  by  virtue  of  which  he  is 
imprisoned,  within  three  hours  after  demand,  shall  be  fined  in  the 
sum  of  five  hundred  dollars. 

Art.  113.  Any  magistrate  who,  on  receiving  notice  of  the  issuing  of  a 
habeas  corpus  for  any  person  committed  by  him  for  any  offence,  shall 
neglect  to  attend  at  the  return  of  the  habeas  corpus,  in  the  manner  di- 
rected in  this  chapter,  shall  be  fined  in  the  sum  of  three  hundred  dol- 
lars ;  unless,  before  receiving  such  notice,  he  shall  have  returned  the 
papers  relative  to  such  commitment,  to  the  clerk  of  the  court  having 
cognizance  of  the  cause. 

Art.  114.  Any  person  who,  knowing  that  another  has  been  dis- 
charged by  order  of  a  competent  judge,  on  ^habeas  corpus,  shall,  con- 
trary to  the  provisions  of  this  chapter,  arrest  or  detain  him  again  for 
the  same  cause,  which  was  shown  on  the  return  of  such  writ,  shall  be 
fined  in  the  sum  of  five  hundred  dollars  for  the  first,  and  one  thousand 
five  hundred  dollars  for  a  second  offence. 

Art.  115.  Any  able  bodied  male  inhabitant  of  this  state,  above  the 
age  of  eighteen  and  under  fifty  years  of  age,  who  shall,  when  legally 
called  on  for  that  purpose,  refuse  to  aid  a  magistrate,  executive  officer 
of  justice,  or  other  person,  legally  authorized  to  serve  or  execute  any 
writ,  commitment  or  order,  issued  by  virtue  of  this  chapter,  in  the  ser- 
vice or  execution  of  such  writ,  warrant  or  order,  shall  be  fined  in  the 
sum  of  fifty  dollars. 

Art.  116.  The  recovery  of  the  said  fines  shall  be  no  bar  to  a  civil  suit 
for  damages,  or  to  a  criminal  prosecution,  for  such  of  the  said  acts  or 
omissions  as  may,  in  the  third  book  of  this  code,  be  declared  to  be 
an  offence. 


CHAPTER  VIII. 


Of  suppressing  permanent  offences  against  property,  and  of  the  dis- 
position of  personal  properly,  seized  and  supposed  to  be  stolen. 

Art.  117.  Permanent  offences  against  personal  property,  by  a  crimi- 
nal taking,  may  be  suppressed  either  by  civil  suit  for  its  restoration,  or 
by  the  means  hereinbefore  directed  of  a  search  warrant,  or  by  resist- 
ance to  the  unlawful  taking. 
3  N 


498  CODE  OF  PROCEDURE. 

Art.  118.  In  all  cases  of  a  conviction  for  a  criminal  taking  or  deten- 
tion of  personal  property,  which  is  taken  with  the  offender  or  in  his 
possession,  or  where  without  such  conviction  the  property  is  found  on 
a  search  warrant,  or  is  detained  in  the  hands  of  an  officer  of  justice  on 
suspicion  of  being  stolen;  on  satisfactory  proof  of  ownership,  it  shall  be 
restored  to  the  owner. 

Art.  119.  No  property  coming  to  the  possession  of  a  magistrate, 
court  or  officer  of  justice,  by  any  of  the  means  described  in  the  last 
preceding  article,  shall  be  restored  to  any  one  claiming  as  owner  until 
after  notice  published  for  fifteen  days,  describing  the  property  and  de- 
signating the  person  from  whom  it  was  taken,  or  the  place  where  it 
was  found,  and  requiring  all  persons  having  any  claims,  to  make  them 
known. 

Art.  120.  If  no  more  than  one  claimant  appear,  the  property  shall, 
without  prejudice  to  any  other  civil  claim,  be  delivered  to  him  on  his 
making  oath  to  the  ownership.  If  more  than  one  claimant  appear,  the 
property  shall  remain  sequestered  in  the  hands  of  the  sheriff,  until  by 
a  civil  suit  the  rights  of  the  parties  be  determined. 

Art.  121.  If  no  claimant  appear,  the  property  shall  be  sold  at  auction, 
and  the  proceeds  paid  to  the  treasurer  of  the  state,  and  if  no  claim  be 
made  on  him  by  any  person  claiming  as  owner  within  one  year,  it  shall 
be  carried  to  account  of  the  Recompense  Fund,  hereinafter  designated. 

Art.  122.  If  an  indictment  or  information  be  presented  against  any 
one  for  a  violent  dispossession  of  real  property,  contrary  to  the  pro- 
visions of  the  Code  of  Crimes  and  Punishments,  it  shall  be  tried  in 
preference  to  any  other,  except  those  for  offences  punishable  with  impri- 
sonment for  life;  and  an  information  may  be  filed  when  the  court  is  not 
in  session  by  permission  of  the  judge,  who  shall  thereupon  hold  a  special 
court  for  the  trial  of  such  offence. 

Art.  123.  If  the  defendant  be  convicted,  the  person  aggrieved  shall 
be  restored  to,  and  maintained  by  the  court  in,  possession  of  the  pro- 
perty against  the  person  convicted,  until  the  right  shall  be  determined 
by  a  civil  suit,  if  any  be  brought. 


TITLE  III. 


OF  THE  MANNER  OF  CALLING  FOR  AND  EMPLOYING  THE  MILITARY  FORCE  OF  THE 
STATE  IN  AID  OF  THE  CIVIL  POWER. 


Art.  124.  Neither  the  militia  nor  any  other  military  force  shall  be 
employed  in  the  aid  of  the  civil  power,  or  brought  to  act  in  a  military 
capacity  against  any  persons  in  the  state,  unless  it  be  called  for  in  the 
manner  directed  by  this  title  ;  and  when  so  called  for  shall  be  subject 
to  the  regulations  hereinafter  prescribed. 


CODE  OF  PROCEDURE.  499 


CHAPTER  I. 


Of  the  manner  and  cases  in  which  the  military  force  may  be 

required. 

Art.  125.  When  any  three  magistrates,  of  whom  a  judge  must  al- 
ways be  one,  shall  be  convinced  by  the  affidavits  of  two  inhabitants  of 
the  state,  that  a  RIOT  or  INSURRECTION  has  taken  place  in  the  parish 
in  which  the  persons  making  the  affidavit  reside,  and  that  the  persons 
engaged  therein  cannot  be  arrested  or  dispersed  by  the  ordinary  force 
of  civil  authority,  they  shall  make  a  written  application  to  the  governor, 
requesting  military  aid. 

Art.  126.  If  the  governor  be  at  such  a  distance  from  the  place  at 
which  the  riot  or  insurrection  exists,  as  is  two  great  to  enable  him  to 
give  the  necessary  orders  in  time  for  its  suppression,  a  copy  of  the  ap- 
plication shall  be  also  sent  to  the  nearest  field  officer  of  ordinary  militia 
or  of  any  independent  corps,  containing  the  same  request. 

Art.  127.  The  application  must  be  signed  by  the  magistrates,  must 
state  the  substance  of  the  testimony  offered  to  them,  and  the  place  and 
probable  object  of  the  riot  or  insurrection,  and  it  must  designate  the 
number  of  men  required  for  the  purpose  of  suppressing  it. 

Art.  128.  Immediately  after  receiving  such  application,  the  governor 
or  officer  to  whom  it  is  directed,  shall  order  the  number  of  men  specified 
therein,  to  march  with  arms  and  ammunition  under  the  command  of 
the  requisite  officer,  and  place  themselves  under  the  direction  of  the 
magistrates  signing  the  application. 

Art.  129.  The  governor  or  the  officer  to  whom  the  application  is 
made,  may,  notwithstanding  the  designation  of  the  number  of  men  in 
the  application,  order  as  many  more  as  he  may  deem  necessary,  to  be 
embodied  and  hold  themselves  in  readiness,  if  those  sent  for  the  pur- 
pose should  prove  insufficient  to  overcome  the  resistance  that  may  be 
offered;  and  if  the  resistance  should  be  continued,  the  men  so  kept 
in  readiness  may  be  employed  without  further  requisition  from  the 
magistrate. 


CHAPTER  II. 


Of  the  manner  in  which  the  military  force  is  to  be  employed. 

Art.  130.  The  officer  commanding  the  troops  detailed  in  compliance 
with  the  application  of  the  magistrates,  shall  immediately  repair  to  the 
place  designated,  and  post  the  troops  in  such  a  manner  as  to  intervene 
between  the  persons  or  the  property  that  it  may  be  the  intention  of  the 
rioters  or  insurgents  to  attack.  He  shall  then  act  entirely  on  the  defen- 
sive, not  suffering  the  men  to  fire,  and  permitting  them  to  use  their 


500  CODE  OF  PROCEDURE. 

edged  or  pointed  weapons  only  to  repel  actual  violence,  except  in  one 
of  the  following  cases. 

1.  If  an  attack  be  made  on  any  one  of  the  militia  by  which  his  life 
is  in  danger,  or  if  an  attempt  be  made  to  disarm  him,  which  he  cannot 
otherwise  avoid,  he  may  defend  himself  by  discharging  his  fire-arms. 

2.  If  a  general  attack  be  made  by  the  insurgents  or  rioters  upon  the 
militia  with  fire-arms,  or  by  missile  or  other  weapons,  by  which  the 
lives  of  the  men  are  indiscriminately  put  in  danger,  the  officer  may 
order  the  men  to  fire,  but  not  until  an  endeavour  has  been  made  to  dis- 
perse the  rioters  by  means  less  dangerous  to  persons  who  may  not  be 
engaged  in  the  offence. 

3.  If  the  troops  cannot  be  so  placed  as  to  intervene  between  the 
rioters  and  the  persons  or  property  which  they  apparently  intend  to 
attack,  and  the  illegal  purpose  of  the  riot  is  persevered  in,  by  means 
evidently  dangerous  to  the  lives  of  others,  although  no  attack  be  made 
on  the  troops  themselves,  the  magistrates,  or  any  two  of  them,  may  di- 
rect the  officer  to  disperse  the  rioters,  which  he  is  authorised  to  do,  by 
ordering  the  men  first  to  use  the  bayonet  or  sword,  and  if  they  prove 
ineffectual  to  disperse  the  assembly,  but  not  otherwise,  then  to  discharge 
their  fire-arms  against  them. 

4.  The  troops  shall  not  be  brought  up  to  the  place  until  the   white 
flag  has  been  displayed  by  a  magistrate,  and  warning  given  to  disperse, 
in  the  manner  directed  by  the  article  of  the  Code  of  Crimes  and 
Punishments,  and  unless  in  defence  against  an  attack  dangerous  to  life, 
no  order  shall  be  given  or  obeyed  to  make  any  discharge  of  fire-arms, 
or  other  use  of  any  other  arms  than  for  defence,  until  half  an  hour  shall 
have  elapsed  after  the  displaying  of  the  white  flag  and  the  giving  the 
warning  to  disperse. 

5.  Every  endeavour  must  be  used  both  by  the  magistrates  and  of- 
ficer commanding  the  troops  that  can  be  made  consistently  with  the 
preservation  of  life,  to  induce  or  force  the  rioters  or  insurgents  to  dis- 
perse before  any  attack  is  made  upon  them  by  which  their  lives  may 
be  endangered. 


BOOK  II. 


OF  THE  MODE  OF  PROSECUTING  OFFENCES. 


TITLE  I. 


OF  ARREST  AND  BAIL. 


CHAPTER  I. 


Definitions  and  general  principles,  relative  to  the  subject  of  this 

title. 

Art.  131.  A  complaint  is  the  allegation  made  to  a  proper  officer,  that 
some  person,  whether  known  or  unknown,  has  been  guilty  of  a  desig- 
nated offence. 

Art.  132.  No  complaint  can  have  a  legal  effect,  unless  it  be  supported 
by  such  evidence  as  shall  show  that  an  act  which  constitutes  an  offence 
has  been  committed,  and  renders  it  certain  or  probable,  that  it  was  com- 
mitted by  some  person  named  or  described  in  the  complaint.  It  is 
then  called  an  ACCUSATION. 

Art.  133.  The  evidence  mentioned  in  the  last  preceding  article  may 
be  taken  without  the  knowledge  of  the  party  accused,  or  the  effect  of 
the  law  might  be  evaded  by  his  escape.  But  he  cannot  be  condemned 
on  such  evidence  ;  he  must  have  an  opportunity  of  explaining  or  con- 
tradicting it  before  the  judges  who  are  finally  to  decide  on  his  inno- 
cence or  guilt.  This  investigation  is  called  the  TRIAL.  It  necessarily 
requires  some  delay,  but  public  justice  requires  that  during  this  interval, 
the  person  of  the  accused  should  be  secured,  in  order  that  he  may  un- 
dergo the  penalty  of  the  law,  if  he  be  found  guilty.  This  is  affected 
by  an  ARREST. 

Art.  134.  As  it  would  be  oppressive  in  most  cases  to  deprive  the 
accused  of  his  liberty  before  trial  and  conviction,  if  he  can  give  a  suf- 
ficient pledge  for  his  appearance  at  the  trial,  the  law  restores  him  to 
his  liberty  on  his  giving  such  pledge.  This  pledge  is  called  BAIL. 

Art.  135.  There  are  cases  in  which  the  accused  is  bailable  of  right, 
others  in  which  it  is  discretionary  with  the  judge  to  admit  to  bail,  and 
some  in  which  no  bail  can  be  taken.  The  rules  relative  to  these  several 


502  CODE  OF  PROCEDURE. 

distinctions  are  laid  down  in  a  subsequent  chapter  of  this  title,  and  in 
the  chapter  of  the  preceding  book  relative  to  writs  of  habeas  corpus. 


CHAPTER  II. 


Of  the  mode  of  making  a  complaint  and  accusation,  and  of  ordering 

an  arrest. 


SECTION  I. 

Of  complaints  and  accusations,  and  who  may  receive  them. 

Art.  1 36.  Any  judge  of  any  court,  any  mayor  or  justice  of  the  peace, 
of  the  state,  is  authorized  to  receive  complaints  and  accusations  for  of- 
fences ;  to  issue  warrants,  order  arrests,  make  commitments,  and  take 
bail  in  the  manner  directed  by  this  code.  They  are  designated  under 
the  general  term,  MAGISTRATE. 

Art.  137.  Any  person,  even  those  incapable  of  giving  testimony, 
may  make  complaint  to  a  magistrate. 

Art.  138.  When  a  complaint  shall  be  made  to  a  magistrate,  he  shall 
reduce  the  declaration  of  the  complainant  to  writing,  and  if  he  be  a 
person  capable  of  giving  testimony,  shall  administer  an  oath,  that  the 
said  declaration  contains  the  truth,  and  shall  cause  it  to  be  signed  in 
his  presence,  and  shall  then  proceed  to  take  such  other  testimony  as 
shall  be  offered  him  to  prove  the  offence,  or  designate  the  offender, 
causing  each  declaration  to  be  SIGNED  by  the  declarant,  and  attested  on 
oath. 

Art.  139.  If  it  appear  probable  to  the  magistrate  than  any  other  per- 
sons have  knowledge  of  any  material  fact  or  circumstance  relative  to 
the  complaint,  it  is  his  duty  to  summon  and  examine  them  on  oath, 
touching  the  matter  of  the  complaint. 


SECTION  II. 

Of  warrants  of  arrest,  and  citation. 

Art.  140.  When  a  magistrate  from  the  complaint  or  accuation,  or 
other  evidence  taken  before  him,  is  convinced  that  an  offence  has  been 
committed,  and  has  reason  to  believe,  that  any  person  who  can  be 
sufficiently  designated  by  name  or  description,  has  committed  such  of- 
fence, it  shall  be  his  duty  to  issue  a  WARRANT  OP  ARREST,  or  CITATION, 
according  to  the  discretion  hereinafter  vested  in  him. 

Art.  141.  When  an  offence  is  committed  in  the  presence  of  a  magis- 
trate, he  may  issue  a  warrant  of  arrest,  although  no  complaint  or  accu- 
sation be  brought  before  him  ;  but  in  such  case  the  warrant  must  be 
returnable  before  some  other  magistrate,  and  the  magistrate  signing 
the  same,  must  reduce  his  own  testimony  to  writing,  and  prior  to  any 


CODE  OF  PROCEDURE.  503 

commitment  or  holding  to  bail,  attest  the  same  before  such  other  ma- 
gistrate on  oath. 

Art.  142.  A  warrant  of  arrest  is  an  order  in  writing,  directing  a  per- 
son, accused  or  suspected  of  having  committed  an  offence,  to  be  brought 
before  a  magistrate  or  court  of  examination. 

Art.  143.  This  warrant  may  be  issued  by  the  governor  of  the  state, 
by  any  court  having  any  criminal  jurisdiction,  or  any  magistrate. 

Art.  144.  It  must  be  directed  to  the  person  who  is  to  execute  it, 
either  by  name,  or  by  his  official  designation.  In  the  latter  case  it 
may  be  directed  specially  to  a  particular  officer,  or  generally  to  all 
officers  of  the  same  description  :  when  so  generally  directed,  any 
officer  of  that  description,  to  whom  it  is  delivered,  must  execute  it. 

It  must  describe  the  party  suspected  or  accused,  by  name,  or  by- 
such  other  designation,  as  may  sufficiently  distinguish  him,  and  it 
must  contain  an  order  to  arrest  and  bring  him  before  some  court  or 
magistrate  for  examination.  The  offence  of  which  the  person  to  be 
arrested  is  accused  or  suspected,  must  be  set  forth,  either  by  its  legal 
appellation,  or  it  must  be  substantially  described. 

It  must  be  signed  by  the  magistrate,  or  by  the  clerk  of  the  court 
which  issues  it. 

Art.  145.  Warrants  of  arrest  maybe  directed  to  a  sheriff  or  his 
deputy,  or  to  a  constable.  These  are  called  officers  of  justice,  and 
they  are  bound  to  execute  any  legal  warrant  directed  to  them.  War- 
rants may  also  be  directed  to  individuals,  who  are  not  such  officers, 
but  they  are  under  no  obligation  to  execute  such  warrant  unless  they 
have  undertaken  so  to  do  ;  in  which  case  they  are  bound  by  the  same 
rules,  and  are  subject  to  the  same  penalties  for  neglect  or  misconduct, 
as  officers  are. 


SECTION  III. 
In  what  cases  an  arrest  may  be  made  without  warrant. 

Art.  146.  Where  a  CRIME,  or  a  BREACH  OF  THE  PEACE  has  been 
committed,  and  the  offender  shall  endeavour  to  make  his  escape,  if 
there  is  a  good  reason  to  believe  that  he  will  effect  it,  before  a  war- 
rant can  be  obtained,  he  may  be  arrested  by  virtue  of  a  verbal  order  of 
any  magistrate,  or  without  such  order,  if  no  magistrate  be  present. 

Art.  147.  Any  one  in  the  act  of  committing  a  crime,  may  be  ar- 
rested by  any  person  present,  without  a  warrant. 

Art.  148.  Whenever  a  CRIME  is  committed,  and  the  offenders  are 
unknown,  and  any  person  shall  be  found  near  the  place  where  the 
crime  was  committed,  either  endeavouring  to  conceal  himself,  or  en- 
deavouring to  escape,  or  under  such  other  circumstances  as  justify  a 
REASONABLE  SUSPICION  of  his  being  the  offender,  such  person  may 
be  arrested  without  warrant. 

Art.  149.  In  cities  and  towns,  even  in  cases  where  it  is  not  certain 
that  an  offence  has  been  committed,  it  is  the  duty  of  officers  of  justice 
and  persons  employed  in  such  cities  and  towns  as  watchmen,  without 
warrant  to  arrest  and  detain  for  examination,  such  persons  as  may  be 


504  CODE  OF  PROCEDURE. 

found  at  night,  under  such  circumstances  as  justify  a  reasonable  sus- 
picion that  they  have  committed  or  intended  to  commit  an  offence. 


SECTION  IV. 

Of  citations. 

Art  150.  In  cases  of  misdemeanour,  when  no  danger  appears  of  the 
defendant's  absconding,  the  magistrate,  instead  of  a  warrant  of  arrest, 
may  issue  a  citation  in  the  form  provided  for  by  this  code. 

Art.  151.  The  citation  may  be  served,  either  by  leaving  a  copy 
with  some  person  above  the  age  of  puberty  who  shall  be  found  at  the 
dwelling  house  of  the  defendant,  or  by  delivering  such  copy  per- 
sonally to  him. 

Art.  152.  Ifxthe  defendant  do  not  appear  at  the  time  and  place  of 
the  return  of  the  citation,  when  it  has  been  duly  served,  the  magistrate 
shall  issue  a  warrant  of  arrest. 


CHAPTER  III. 


Of  the  duly  and  powers  of  officers  of  justice  and  others  in  making 

arrests. 

Art.  153.  At  or  before  the  time  of  making  an  arrest,  the  person  who 
makes  it  must  declare  that  he  is  an  officer  of  justice,  if  such  be  the 
case.  If  he  have  a  warrant,  he  must  show  it  if  required  ;  or  if  he 
make  the  arrest  without  warrant  in  any  of  the  cases  in  which  it  is 
authorized  by  law,  he  must  give  the  party  arrested  clearly  to  under- 
stand, for  what  cause  he  undertakes  to  make  the  arrest,  and  must 
require  him  to  submit  and  accompany  him  to  the  magistrate. 

Art.  154.  The  arrest  is  complete  as  soon  as  such  notice  is  given  as 
is  required  by  the  last  preceding  article  ;  provided,  the  party  in- 
tended to  be  arrested,  from  his  situation  and  other  circumstances,  may 
reasonably  be  supposed  to  have  heard  the  said  notice,  and  to  have 
known  that  it  was  addressed  to  him. 

Art.  155.  In  all  cases  where  the  person  arrested  refuses  to  submit  to 
the  arrest,  or  to  proceed  to  the  magistrate  for  examination,  or  attempts 
to  escape,  such  degree  of  force  may  be  used  as  is  necessary  to  compel 
his  appearance.  But  when  he  submits  to  the  arrest,  and  neither 
attempts  to  escape  nor  make  resistance,  PERSONAL  VIOLENCE  shall  not 
be  used,  nor  shall  BLOWS,  STRIPES  or  WOUNDS  be  inflicted  in  any  case, 
as  a  means  of  enforcing  submission  to  the  arrest,  except  so  far  as  is 
hereinafter  specially  provided. 

Art.  156.  He  who  makes  an  arrest,  may  take  from  the  party  arrested 
all  OFFENSIVE  WEAPONS  which  he  may  have  about  his  person,  and 
must  deliver  them  to  the  magistrate  who  takes  the  examination,  to  be 
disposed  of  according  to  law. 

Art.  157.  No  person  who  shall  kill  or  wound  another,  intentionally 


CODE  OF  PROCEDURE,  505 

or  unintentionally,  by  the  use  of  such  means  as  would  probably  pro- 
duce death,  shall  he  justified  or  excused  for  such  killing  or  wounding, 
although  he  prove  that  the  party  killed  or  wounded  endeavoured  to 
escape  from  an  arrest  ;  but  if  the  party  arrested  or  attempted  to  be 
arrested,  shall,  after  receiving  the  notice  provided  for  in  the  first  article 
of  this  chapter,  make  resistance  with  DEADLY  WEAPONS,  the  person 
making  the  arrest  may  also  use  such  weapons,  where  they  are  necess- 
ary for  his  defence  and  to  repel  any  forcible  opposition  to  the  execu- 
tion of  the  arrest ;  and  in  such  case,  if  wounds  or  death  ensue,  the 
party  making  the  arrest  shall  be  justified.  This  article  does  not 
extend  to  prisoners  breaking  out,  or  endeavouring  to  break  out  of 
prison  when  lawfully  arrested  ;  in  such  case,  the  person  having  custody 
of  the  prisoner,  and  others  employed  by  him,  may  lawfully  use  offen- 
sive weapons  to  prevent  the  breach  of  the  prison. 

Art.  15S.  If,  after  a  lawful  arrest  has  been  made,  any  one  shall,  by 
force,  rescue  or  attempt  the  rescue  of  the  prisoner,  or  before  the  arrest 
has  been  made,  shall  by  force  attempt  to  prevent  it  from  being  made, 
the  person  having  the  prisoner  in  custody,  or  authorized  to  make  the 
arrest,  and  others  who  may  be  lawfully  aiding  him,  may  resist  such 
force,  and  in  doing  so  may  use  deadly  weapons,  whenever  it  may  be 
necessary  to  prevent  this  rescue,  or  overcome  resistance  to  the  arrest. 

The  provisions  of  this  article  extend  to  all  cases  where  a  person  is 
in  lawful  custody. 

Art.  159.  In  all  cases  of  arrest  for  examination,  the  person  making 
the  same  must,  without  unnecessary  delay,  conduct  the  party  arrested 
before  the  court  or  magistrate  by  whom  the  warrant  was  issued,  or,  if 
the  arrest  was  made  without  warrant,  before  the  nearest  magistrate 
in  the  parish. 

Art.  160.  Until  the  person  arrested  can  be  brought  before  the 
court  or  magistrate,  and  during  the  examination  he  remains  in  the 
custody  of  the  person  making  the  arrest,  or  of  some  officer  of  justice 
appointed  by  the  magistrate  or  court. 

Art  161.  Watchmen  in  cities  or  towns,  and  officers  of  justice  having 
charge  of  prisoners  any  where,  are  authorized  to  receive  persons 
arrested  for  examination,  when  necessary,  for  their  safe  custody  du- 
ring the  night  or  at  other  times  when  they  cannot  be  brought  before 
the  court  or  magistrate  for  examination,  and  to  deliver  them  again  to 
the  party  who  made  the  arrest ;  but  in  all  such  cases,  the  person  hav- 
ing charge  of  the  prison,  shall  take  a  copy  of  the  warrant  if  the  arrest 
is  made  by  warrant,  or  of  a  declaration  of  the  cause  of  the  arrest  in  wri- 
ting, signed  by  the  party  making  the  arrest,  if  it  be  one  made  without 
warrant. 

Art.  162.  If  the  magistrate  who  shall  issue  any  warrant  of  arrest, 
shall  be  absent  at  the  time  when  it  is  returned,  or  unable  from  what- 
ever cause,  to  examine  the  prisoner,  the  person,  in  whose  custody  he 
is,  must  conduct  him  before  some  other  magistrate  in  the  same  parish, 
and  in  such  case  the  complaint  and  affidavit  on  which  the  warrant  was 
granted  must  be  sent  to  the  magistrate  before  whom  the  prisoner  was 
taken,  or  if  they  cannot  be  procured,  the  complainant  and  witnesses 
must  be  summoned  to  give  their  testimony  anew. 

Art.  163.  Warrants  of  arrest  may  be  executed  in  any  parish  of  the 
state,  provided  the  person  authorized  to  execute  such  warrant  shall  pro- 
cure the  allowance  of  some  magistrate  in  such  parish,  which  he  is  re- 
3O 


506  CODE  OF  PROCEDURE. 

quired  to  give  on  being  satisfied  that  the  warrant  is  not  forged,  and  that 
the  person  presenting  it,  is  the  person  to  whom  it  is  directed. 

This  allowance  shall  be  made  by  writing  on  the  warrant  the  word 
"allowed,"  with  the  name  of  the  parish  and  the  date  of  the  allowance 
signed  with  the  name  of  the  magistrate  who  makes  it.  In  whatever 
parish  the  arrest  be  made,  the  prisoner  shall  be  brought  to  the  parish 
in  which  the  warrant  for  his  examination  was  issued. 

Art.  164.  Arrests  may  be  made  on  any  day  and  at  any  hour  of  the 
day  or  night,  and  at  any  place  within  the  state,  under  the  several  mo- 
difications provided  in  this  section. 

Art.  165.  If  the  person  accused  shall  fly  into  any  HOUSE,  or  other 
BUILDING,  in  order  to  avoid  arrest,  any  one  having  authority  in  the 
manner  directed  in  this  chapter  to  arrest  him,  may  follow  him  into  the 
said  house,  and  when  entered,  he  may,  for  the  purpose  of  making  the 
arrest,  break  any  inner  door  of  any  apartment,  in  such  house  where  the 
accused  may  be,  if  entrance  be  refused. 

Art.  166.  If  the  door  be  not  opened  when  required,  it  is  a  refusal  of 
entrance. 

Art.  167.  No  one  is  authorized  to  break  the  outer  door  of  a  house 
in  order  to  make  an  arrest,  but  an  officer  or  other  person  having  a  war- 
rant of  arrest,  and  those  who  are  lawfully  assisting  him,  except  as  is 
provided  in  the  next  article. 

Art.  168.  In  cases  where,  by  any  of  the  preceding  articles,  arrests 
are  authorized  to  be  made  without  warrant,  the  person  so  authorized, 
may  justify  breaking  the  outer  door  of  any  house,  or  in  any  other  man- 
ner forcing  an  entrance  therein,  without  warrant,  in  cases  of  such  crimes 
only  as  are  punishable  by  an  imprisonment  for  life. 

Art.  169.  No  outer  door  of  any  house  can  in  any  case  be  broken,  or 
an  entrance  forced  therein,  in  order  to  make  an  arrest,  without  the  fol- 
lowing formalities  : 

Entrance  must  be  demanded  in  a  loud  voice. 

Notice  must  be  given  in  the  same  manner  that  the  party  is  the  bearer 
of  a  warrant  of  arrest. 

Or  if  it  is  a  case  in  which  the  arrest  is  lawful  without  warrant,  that 
information  must  be  substantially  given  in  an  audible  voice. 

If  the  arrest  is  attempted  to  be  made  at  night,  two  householders  of 
the  parish,  required  for  the  purpose,  must  be  present,  who  must  an- 
nounce their  names  to  those  within. 

Art.  170.  All  inhabitants  of  the  state  when  called  on  by  a  magistrate 
or  officer  of  justice,  are  bound  to  assist  in  making  arrests  and  securing 
the  persons  arrested,  and  are  justified  in  doing  all  acts  in  rendering 
such  aid,  which  the  officer  himself  might  do. 

Art.  171.  If  any  person  who  has  been  lawfully  arrested  shall  escape 
or  be  rescued  from  custody,  either  before  or  after  commitment,  the 
person  from  whose  custody  he  escaped  may  lawfully  pursue  and  arrest 
him  by  virtue  of  the  original  warrant  or  commitment  in  any  part  of 
the  state,  and  convey  him  back  to  his  former  custody. 


CODE  OF  PROCEDURE.  507 


CHAPTER  IV. 


Of  the  duty  of  magistrates  in  taking  examinations  and  making 

commitments. 

Art.  172.  When  the  person  accused  is  brought  before  a  magistrate 
for  examination,  he  shall  be  informed  of  the  accusation  against  him  ; 
the  examinations  of  the  witnesses,  which  have  been  taken,  shall  be 
read  to  him  ;  and,  if  he  request  it,  the  witnesses  (if  they  are  yet  alive 
and  within  the  state)  shall  be  summoned  to  attend,  and  they,  as  well -as 
any  additional  witnesses  who  are  produced,  may  be  cross  examined  by 
the  acccused  or  his  counsel. 

Art.  173.  The  magistrate  shall  then  proceed  to  the  examination  of 
the  person  accused  in  the  following  manner  : 

1st.  He  must  be  informed  that,  although  he  is  at  liberty  to  answer  in 
what  manner  he  may  think  proper  to  the  questions  that  shall  be  put  to 
him,  or  not  to  answer  them  at  all,  yet  a  departure  from  the  truth,  or  a 
refusal  to  answer  without  assigning  a  sufficient  reason,  must  operate  as 
a  circumstance  against  him,  as  well  on  the  question  of  commitment  as 
of  his  guilt  or  innocence  on  the  trial. 

2d.  The  magistrate  shall  next  put  the  following  interrogatories  to 
the  person  accused  : 

What  is  your  name  and  age  ? 
Where  were  you  born  ? 

Where  do  you  reside,  and  how  long  have  you  resided  there  ? 
What  is  your  business  or  profession  ? 

Where  were  you  at  the  time  the  act  (or  omission)  of  which  you  are 
accused  is  stated  by  the  witnesses  to  have  taken  place  ? 

Do  you  know  the  persons  who  have  been  sworn  as  witnesses  on  the 
part  of  the  accusation,  or  any,  and  which  of  them,  and  how  long  have 
you  known  them  ? 

Give  any  explanation  you  may  think  proper  of  the  circumstances 
appearing  in  the  testimony  against  you,  and  state  any  facts  that  you 
think  will  tend  to  your  exculpation. 

3d.  If  any  writing,  or  any  article  of  property,  be  produced  in  evi- 
dence, it  must  be  shown  to  him,  and  he  must  be  asked  whether  he  re- 
cognises it. 

4th.  The  answers  of  the  accused  to  the  several  interrogatories  shall 
be  reduced  to  writing  by  the  magistrate,  or  some  one  by  his  order.  They 
shall  be  shown  or  read  to  the  accused,  who  may  correct  and  add  to  them; 
and  when  made  conformable  to  what  he  declares  is  the  truth,  may  be 
SIGNED  by  him  ;  but  if  he  refuses  to  SIGN,  his  reason  shall  be  stated  in 
writing,  as  he  gives  it,  by  the  magistrate  himself;  and  the  examination 
shall  be  signed  and  certified  by  the  magistrate,  whether  the  accused 
sign  it  or  not.  This  examination  is  not  to  be  on  oath. 

Art.  174.  After  the  examination  of  the  accused  is  finished,  his  wit- 
nesses, if  he  have  any,  shall  be  sworn  and  examined,  and  their  exam- 
inations reduced  to  writing  and  signed  by  them  respectively,  after  they 
have  been  read,  corrected  (if  necessary  by  them),  and  approved. 


508  CODE  OF  PROCEDURE. 

Art.  175.  The  witnesses  shall  not  be  present  at  the  examination  of 
the  person  accused  ;  and  while  one  of  them  is  examined,  the  others 
shall  be  kept  apart. 

Art.  176.  All  the  examinations,  depositions,  and  other  proof,  shall 
be  kept  by  the  magistrate,  to  be  disposed  of  as  is  hereinafter  directed. 

Art.  177.  If  the  accused  or  the  public  prosecutor  request  that  a  fur- 
ther examination  take  place,  the  magistrate  may,  at  his  discretion,  post- 
pone the  examination  to  a  future  day  ;  and  either  continue  the  prisoner 
verbally  in  the  custody  of  the  officer  by  whom  he  was  brought  before 
him,  or  give  a  written  commitment  to  the  keeper  of  the  prison  of  the 
parish  ;  in  which  commitment  it  will  be  necessary  only  to  state,  that 
the  party  is  committed  for  further  examination  on  a  complaint  of  (stat- 
ing the  offence). 

Art.  178.  After  being  once  committed  for  further  examination,  the 
prisoner  may  be  verbally  ordered  to  be  brought  up  and  REMANDED  from 
time  to  time,  as  long  as  the  examination  continues. 

Art.  179.  The  effect  which  the  examinations  and  depositions,  taken 
before  the  magistrate,  i's  to  have  on  the  trial,  is  set  forth  in  the  Code  of 
Evidence. 

Art.  ISO.  It  is  the  duty  of  the  magistrate,  before  whom  a  prisoner 
is  brought  for  examination,  to  addvess  him  without  passion.  He  must 
neither  use  menace,  nor  hold  out  hopes  of  impunity  or  reward,  in  or- 
der to  influence  him. 

Art.  181.  In  cases  of  difficulty,  other  magistrates  of  the  same  parish 
may  assist  at  the  examination  and  offer  the  sitting  magistrate  their  ad- 
vice, but  he  must  decide,  except  on  questions  of  bail,  as  is  herein  after 
provided. 

Art.  182.  The  prisoner  may  have  the  assistance  of  such  counsel  as 
he  may  employ,  but  the  magistrate  has  no  authority  to  assign  counsel. 

Art.  183.  Whenever  the  accusation  is  for  a  crime,  the  magistrate 
shall,  and  on  all  other  occasions  may,  give  notice  to  the  public  prosecu- 
tor to  attend  the  examination;  and  it  shall  be  his  duty,  on  such  occasions, 
to  attend  and  examine  the  witnesses,  and  argue  all  questions  of  law 
and  fact  that  may  arise  in  the  course  of  the  investigation. 

Art.  184.  The  magistrate  has  the  same  powers  for  preserving  order, 
during  the  examinations,  that  are  vested  in  courts  by  the  chapter  of  the 
Code  of  Crimes  and  Punishments  relative  to  offences  against  the  judi- 
ciary power  committed  in  a  court  of  justice  ;  and  the  magistrate  may, 
on  his  own  view,  immediately  make  a  commitment  for  trial  for  any  of 
the  said  offences. 

Art.  185.  The  magistrate  shall,  on  the  application  of  the  accused  or 
the  public  prosecutor,  issue  summonses  to  the  witnesses  that  may  be  re- 
quired by  either,  which  shall  be  served  by  any  officer  of  justice  ;  and 
if  they  refuse  to  attend,  they  may  be  brought  up  by  warrant ;  and  any 
witness  refusing  to  answer  a  legal  question,  may  be  committed  to  pri- 
son until  he  shall  agree  to  answer. 

Art.  186.  After  hearing  the  proof,  and  considering  the  allegation,  if 
any  fce  made  by  the  accused,  the  magistrate  must  determine,  whether 
he  be  legally  charged  with  the  offence  of  which  he  is  accused,  or  any 
other  offence,  or  there  be  sufficient  reason  to  believe  him  guilty  thereof. 
In  either  case,  that  is  to  say?  if  the  charge  be  positively  proved  by  a 
credible  witness,  although  there  be  exculpatory  proof,  or  although  there 
be  no  such  direct  proof,  but  the  circumstances  detailed  induce  a  belief 
that  he  is  guilty,  he  must  be  bailed  or  committed. 


CODE  OF  PROCEDURE.  509 

Art.  187.  A  commitment  is  an  order  directed  to  the  sheriff  of  the 
parish,  commanding  him  to  keep  the  prisoner  in  safe  custody,  to  an- 
swer a  charge  for  the  offence  of  which  he  is  accused  (specifying  the 
same  particularly),  until  he  shall  be  released  by  law.  This  commitment 
must,  in  substance,  contain  a  direction  to  the  sheriff  or  his  deputy,  or  the 
keeper  of  the  jail,  either  by  the  style  of  his  office,  or  by  name,  or  both. 

An  allegation  that  the  person  (naming  or  describing  him),  is  charged 
on  oath  with  an  offence,  (specifying  it  either  by  the  legal  appellation 
of  the  offence,  or  substantially  stating  the  act  which  has  been  charged.) 

An  order  to  receive  the  prisoner  and  detain  him  until  he  shall  be 
discharged  by  law. 

It  must  be  signed  by  the  magistrate  issuing  it,  or  if  issued  by  a  court, 
the  commitment  must  be  under  its  seal  and  signed  by  the  clerk. 

Art.  188.  No  person  shall  be  discharged  for  any  defect  of  form  in 
the  commitment,  if  it  can  be  sufficiently  understood  from  the  language 
thereof,  in  its  usual  signification,  that  the  officer  detaining  him  is  the 
person  to  whose  custody  persons  accused  of  offences  may  be  legally 
committed;  that  the  prisoner  is  legally  charged  with  some  offence j  and 
that  the  commitment  be  signed  by  a  magistrate  authorized  to  make 
commitments. 

Art.  189.  The  commitment  shall  be  delivered  to  an  officer  of  justice, 
whose  duty  it  shall  be  to  take  charge  of  the  prisoner,  without  other 
warrant,  and  convey  him  without  delay  to  the  officer  who  is  directed 
to  receive  him. 

Art.  190.  But  if  the  offence  be  BAILABLE  OF  RIGHT,  or  if  not  bailable 
of  right,  and  the  proof  is  not  evident  nor  the  presumption  great,  the 
magistrate  cannot  commit  the  prisoner,  if  he  offers  good  bail.  His 
duty,  in  taking  bail,  is  set  forth  in  the  next  chapter. 

Art.  191.  If  it  appear  from  the  testimony,  that  the  prisoner  is  guilty 
of  any  other  offence  than  the  one  of  which  he  was  originally  accused, 
he  shall  be  committed  or  bailed  for  such  offence. 


CHAPTER  V. 


Of  the  duty  of  the  magistrate  in  taking  bail. 

Art.  192.  The  constitution  declares,  that  "  all  persons  shall  be  baila- 
ble, except  for  capital  offences,  whenever  the  proof  is  evident  or  pre- 
sumption great."  At  the  time  of  adopting  the  constitution  the  capital 
offences  were  murder,  rape,  exciting  insurrection  among  slaves,  and 
stabbing  or  shooting  or  poisoning  with  intent  to  murder;  therefore,  all 
other  offences  are  and  must  be  bailable.  Persons  accused  of  the  of- 
fences above  enumerated,  are  also  to  be  bailed  when  the  proof  is  not 
evident  nor  the  presumption  strong. 

Art.  193.  A  single  justice  of  the  peace  may  admit  to  bail  in  all  cases 
of  misdemeanor,  and  in  cases  of  crime  where  the  punishment  is  impri- 
sonment at  hard  labour  for  a  term  not  exceeding  six  years.  In  cases 
where  the  punishment  exceeds  that  term,  but  is  less  than  fifteen  years, 
the  assent  of  two  justices  is  necessary  for  determining  the  amount  of 
bail  and  approving  the  security.  In  all  other  cases  the  bail  must  be 
taken  before  a  judge. 


510  CODE  OF  PROCEDURE. 

When  homicide  is  directly  proven  or  admitted  on  an  examination 
before  a  justice,  the  prisoner  cannot  be  admitted  to  bail  by  the  justice 
alone  without  the  assent  of  a  judge,  notwithstanding  any  allegation  or 
proof  of  justification,  excuse  or  alleviation.  He  must,  in  such  case,  be 
committed  ;  and,  if  the  circumstances  require  it,  afterwards  bailed,  or 
relieved  on  habeas  corpus. 

Art.  194.  Bail  is  given  by  the  prisoner  and  his  surety  signing  a 
RECOGNIZANCE,  conditioned  for  the  appearance  of  the  prisoner  at  the 
next  session  of  a  court  of  competent  jurisdiction,  to  be  named  in  the 
condition,  and  to  abide  the  judgment  of  such  court. 

Art.  195.  When  bail  is  given,  the  prisoner  must  be  discharged  with- 
out exacting  from  him  the  payment  of  any  fees. 

Art.  196.  In  all  cases  where  a  crime  is  charged,  and  from  the  nature 
of  the  offence  any  proof  or  presumption  of  guilt  may  reasonably  be 
supposed  to  be  drawn  from  any  article  in  the  possession  of  the  prisoner, 
the  magistrate  may  direct  him  to  be  searched  in  his  presence,  and  shall 
preserve  all  things  found  on  him  which  may  be  useful  to  be  produced 
on  the  trial,  and  afterwards  disposed  of  according  to  law. 

Art.  197.  Where  the  offence  charged  is  the  illegal  infliction  of  a 
wound,  or  any  other  injury,  which  may  terminate  in  the  death  of  the 
person  injured,  and  the  offence  be  proved  or  confessed,  the  magistrate 
cannot  discharge,  if  it  appear  from  the  examination  of  surgeons  that  there 
is  a  probability  that  death  will  ensue  in  consequence  of  such  injury.  In 
this  case  the  party  must  be  committed  for  further  examination,  until 
the  consequences  of  the  injury  can  be  ascertained. 

Art.  198.  No  justice  of  the  peace  can  let  any  prisoner  to  bail  after 
he  has  been  committed  for  trial;  the  power  of  these  magistrates,  on  this 
subject,  is  confined  to  cases  where  persons  are  brought  before  them  for 
examination. 

Art.  199.  The  amount  of  bail  cannot  be  apportioned  by  law  to  the 
circumstances  of  every  case.  It  forms  one  of  the  most  important  and 
delicate  exercises  of  judicial  duty.  It  should  be  so  performed  as  neither 
to  suffer  the  wealthy  offenders  to  escape  by  the  payment  of  a  pecuniary 
penalty,  nor  to  render  the  privilege  useless  to  the  poor.  In  order  to 
make  it  a  sure  pledge  for  the  appearance  of  the  party,  it  must  be  de- 
termined by  considering : 

1.  The  nature  of  the  punishment  to  be  inflicted  on  conviction. 

2.  The  pecuniary  circumstances  of  the  party  accused. 

If  the  offence  be  punishable  by  hard  labour,  imprisonment  or  priva- 
tion of  civil  rights,  the  desire  to  avoid  punishment  being  greater,  it 
should  be  counteracted  by  an  increase  of  penalty. 

The  wealth  of  the  party  must  also  be  considered.  The  poor  might 
be  oppressed  by  requiring  an  amount  of  security  which  would  be  no 
pledge  whatever  for  the  appearance  of  the  rich.  For  these  reasons, 
the  law  leaves  to  the  discretion  of  the  judge  to  determine  the  amount 
of  bail,  guided  by  the  above  principles,  and  within  the  limits  contained 
in  the  following  articles. 

Art.  200.  Where  the  punishment  of  the  offence  is  a  pecuniary  penalty 
only,  the  bail  must  be  greater  than  the  highest  fine  that  can  be  imposed. 

Art.  201.  When  simple  imprisonment  forms  a  part  of  the  punish- 
ment, one  dollar  at  least  must  be  added  to  the  amount  of  bail  for  every 
day  that  the  party  may  be  sentenced,  if  not  exceeding  one  year  ;  if  the 
imprisonment  may  exceed  one  year,  then  any  further  addition  must  be 
left  to  the  discretion  of  the  magistrate. 


CODE  OF  PROCEDURE.  511 

Art.  202.  If  hard  labour  form  part  of  the  punishment  on  conviction, 
then  two  dollars  at  least  is  to  be  added  to  the  amount  of  bail  for  every 
day  to  which  the  party  may  be  sentenced,  not  exceeding  one  year  ;  if 
the  punishment  may  exceed  one  year,  then  any  further  increase  must 
be  left  to  the  discretion  of  the  magistrate. 

Art.  203.  If  a  suspension  or  forfeiture  of  political  or  civil  rights, 
without  imprisonment  at  hard  labour,  form  a  part  of  the  punishment, 
then  the  sum  of  five  hundred  dollars  at  least  must  be  added  to  the 
amount  of  the  bail. 

Art.  204.  The  five  last  preceding  articles  shall  also  govern  the  judges 
who  may  bail  prisoners  on  writs  of  habeas  corpus. 

Art.  205.  No  person  shall  be  received  as  surety  for  the  appearance 
of  the  party  accused,  who  is  not  a  HOUSEHOLDER  who  has  resided  at 
least  one  year  in  the  state,  and  who  does  not  own  or  possess  property 
either  real  or  personal  to  double  the  amount  of  the  sum  for  which  he 
is  bound  to  prove  by  his  oath,  in  all  cases  where  the  magistrate  has  any 
doubt  of  his  sufficiency. 

Art.  206.   A  woman  cannot  be  received  at  bail. 

Art.  207.  In  all  cases  of  crime,  two  sureties  are  required. 

Art.  208.  A  single  surety  will  be  sufficient,  if  he  possess  and  own 
unincumbered  real  property  to  double  the  amount  of  the  sum  for  which 
he  is  bound. 

Art.  209.  When  the  person  admitted  to  bail  is  a  minor  or  a  married 
woman,  the  engagement  shall,  notwithstanding,  be  valid. 

Art.  210.  If,  owing  to  mistake  or  misrepresentation,  insufficient  bail 
has  been  taken,  or  if  the  sureties  become  afterwards  insufficient,  the 
accused  may  be  ordered  to  find  sufficient  sureties  by  any  magistrate, 
and  on  his  refusal,  may  commit  him  for  trial. 

Art.  211.  In  all  cases  where  a  magistrate  shall  either  commit  for 
trial  or  bail  the  accused,  he  must  cause  each  of  the  witnesses  who  has 
been  examined,  and  has  testified  to  any  material  fact  pr  circumstance  in 
the  case,  to  enter  into  a  recognizance,  without  surety,  in  a  sum  fixed  by 
the  magistrate,  conditioned  for  his  appearance  at  the  next  sitting  of  the 
court,  at  which  the  accused  is  bound  or  committed  to  appear  ;  and  if  a 
witness  shall  refuse  to  sign  such  recognizance  when  required,  he  may 
be  committed  to  prison  by  the  order  of  the  magistrate,  and  shall  be 
confined  until  he  shall  be  brought  before  the  court  to  testify,  or  until 
he  shall  sign  the  recognizance. 

Art.  212.  Those  who  may  have  become  bail  for  any  one,  may  at 
any  time  discharge  themselves  by  surrendering  him  to  the  custody  of 
the  sheriff  of  the  parish  in  which  the  court  at  which  he  was  bound  to 
appear,  shall  sit. 

Art.  213.  The  magistrate  who  took  the  recognizance  of  bail,  is 
bound,  on  request,  to  deliver  a  copy  thereof  to  the  bail,  if  he  have  not 
yet  transmitted  the  same  in  the  manner  hereinafter  directed,  or  if  he 
have  so  transmitted  it,  then  the  clerk  of  the  court  having  custody  there- 
of, must,  on  like  request,  deliver  such  copy,  which  shall  be  a  sufficient 
warrant  for  the  bail  to  arrest  the  person  for  whom  they  have  become 
bound.  In  making  which  arrest  the  bail  are  authorized  to  do  the  same 
acts  and  are  bound  by  the  same  rules  as  are  hereinbefore  prescribed  to 
persons  having  warrants  of  arrest  for  examination  on  accusations  for  the 
same  offences. 


512  CODE  OF  PROCEDURE. 

Art.  214.  The  sheriff  to  whom  a  surrender  is  legally  made,  as  au- 
thorized by  the  preceding  articles,  is  bound  to  receive  the  person  so 
surrendered,  and  the  bail  must  deliver  to  him  with  the  prisoner  the 
certified  copy  of  the  recognizance  of  the  bail,  as  his  authority  for  de- 
taining such  prisoner,  and  he  shall  on  the  request  of  such  bail,  give 
them  a  transcript  of  the  recognizance  with  an  acknowledgement  that  he 
has  received  the  person  mentioned  therein,  in  discharge  of  his  bail. 
Which  transcript  and  acknowledgement  being  proved  by  the  oath  of 
two  witnesses  to  have  been  executed  by  such  sheriff,  shall  be  a  suffi- 
cient warrant  for  the  officer  or  magistrate  having  custody  of  the  recog- 
nizance to  cancel  the  same. 

Art.  215.  The  magistrate  who  shall  make  any  commitment  or  let 
any  person  to  bail,  shall  without  any  unnecessary  delay,  at  the  furthest 
within  three  days,  transmit  to  the  clerk  of  the  court,  which  has  legal 
cognizance  of  the  offence  charged,  all  the  complaints,  accusations,  de- 
positions, recognizances  of  bail,  bonds  for  the  appearance  of  witnesses, 
and  all  other  documents  in  his  possession  relative  to  the  accusation. 

Art.  216.  If  there  be  proof  made  before  a  magistrate  of  the  com- 
mission of  any  offence,  and  the  party  accused  shall  not  be  found  on  the 
warrant  of  arrest  for  examination,  it  shall  notwithstanding  be  the  duty 
of  the  magistrate  to  transmit  to  the  court  having  cognizance  of  the 
offence,  all  the  depositions  and  other  documents  he  has  taken  in  the 
manner  directed  by  the  last  section,  in  order  that  the  same  may  be  laid 
before  the  grand  jury  in  the  manner  hereinafter  directed.  But  the  said 
depositions  and  other  documents  need  not  in  this  case  be  transmitted  to 
the  court  until  the  first  day  on  which  it  shall  sit,  after  the  said  deposi- 
tions shall  have  been  taken. 

Art.  217.  Further  rules  respecting  bail  are  given  in  the  chapter 
regulating  the  practice  on  writs  of  habeas  corpus. 


TITLE  II. 


OF  THE  PROCEEDINGS  SUBSEQUENT  TO  T    E  COMMITMENT  OR  BAIL. 


CHAPTER  I. 


Of  appearance  and  the  manner  of  enforcing  it  against  parties  and 

witnesses. 

Art.  218.  The  names  of  all  persons  who  have  given  bail  or  have  be- 
come bound  by  recognizance  to  appear  in  any  court  of  criminal  juris- 
diction, shall  be  called  in  open  court  on  the  day  they  are  respectively 
bound  to  appear,  and  if  they  fail  to  appear  before  the  adjournment  of 
the  court,  and  no  sufficient  cause  is  shown  according  to  the  provisions 
of  the  next  article,  their  defaults  shall  be  entered,  and  such  entry  shall 
be  evidence  of  the  breach  of  their  appearance,  bonds  or  recognizances. 


CODE  OF  PROCEDURE.  513 

Art.  219.  If  it  be  satisfactorily  shown  on  the  part  of  the  sureties  or 
of  the  accused,  that  he  is  prevented  from  appearing  by  inevitable  ne- 
cessity, the  court  must  direct  an  entry  to  be  made  on  the  back  of  the 
appearance  bond,  that  time  is  given  for  the  accused  to  appear  until  such 
day  as  the  court,  under  a  consideration  of  the  circumstances  of  the  case, 
shall  appoint. 

Art.  220.  Courts  may  also,  on  the  motion  of  the  public  prosecutor, 
order  the  sheriff  to  arrest  and  bring  before  them  any  person  who  has 
been  bound  by  recognizance  or  summoned  to  appear  and  give  testimony, 
and  who  has  not  attended  at  the  time  appointed  ;  and  when  so  arrested 
the  said  witnesses  may  be  also  fined  in  any  sum  not  exceeding  fifty 
dollars  for  their  neglect,  and  must  remain  in  custody  until  they  give 
their  testimony  and  are  discharged  from  further  attendance,  or  until 
they  give  such  security  as  shall  satisfy  the  court  (either  by  their  own 
recognizance  or  with  sureties)  for  their  appearance  to  testify.  Provided, 
that  if  a  witness  shall  show  that  he  was  prevented  from  appearing  by 
inevitable  necessity,  the  court  must  remit  the  fine,  and  take  the  wit- 
ness's own  recognizance  for  his  appearance. 

Art.  221.  Witnesses  bound  to  appear,  and  persons  let  out  on  bail, 
must  not  only  attend  on  the  day  appointed  in  their  respective  obliga- 
tions, but  at  such  other  times  as  the  court  shall  direct,  and  the  obliga- 
tion continues,  until  they  are  discharged  by  the  court. 

Art.  222.  If  the  public  prosecutor  discover  that  it  will  be  necessary 
to  have  any  person  examined  before  the  grand  jury,  who  has  not  been 
bound  by  recognizance  to  appear,  he  may  apply  to  a  magistrate,  who 
shall  summon  such  witness  and  cause  him  to  enter  into  recognizance 
for  his  appearance,  to  testify  in  the  manner  prescribed  in  the  first  chap- 
ter of  this  book,  or  he  may  obtain  a  summons  from  the  clerk  of  the 
court  under  his  signature  and  the  seal  of  the  court,  commanding  such 
witness  to  appear  at  a  day  therein  to  be  appointed,  to  give  testimony 
in  such  cases  as  shall  be  required  of  him,  and  courts  and  magistrates 
may,  whenever  they  think  proper,  cause  witnesses  to  enter  into  recog- 
nizance for  their  appearance  to  testify. 


CHAPTER  II. 


Of  the  duty  of  public  prosecutors,  sheriffs  and  clerks,  preparatory 
to  the  meeting  of  the  grand  jury. 

Art.  223.  On  the  first  day  of  each  term  of  any  court,  at  which  a 
grand  jury  is  summoned,  the  sheriff  of  the  parish  in  which  the  court 
shall  sit,  shall  make  out  and  deliver  to  the  judge  of  such  court,  two 
copies  of  a  calendar,  on  which  shall  be  entered  the  names  of  all  the  per- 
sons in  his  custody  committed  for  trial  for  any  offence,  stating  when 
they  were  committed,  by  whom,  and  for  what  offence,  and  entering  on 
the  said  calendar  the  names  of  all  such  persons  as  having  been  com- 
mitted for  any  offence  were  bailed,  since  the  last  term  of  the  court,  and 
by  what  judge.  And  the  clerk  of  the  said  court  shall  also  make  out 
(and  deliver  to  the  judge)  two  copies  of  a  calendar,  on  which  he  shall 
enter  the  names  of  all  the  persons  who  appear  by  the  returns  of  the  magis- 
3  P 


514  CODE  OF  PROCEDURE. 

Irates  to  have  been  either  committed,  or  bailed,  or  who  have  been  ac- 
cused without  having  been  arrested,  for  any  offence,  together  with  the 
dates  of  the  accusation,  the  name  of  the  magistrate  who  committed  or 
bailed,  and  distinguishing  whether  each  person  was  committed  or  bailed, 
or  could  not  be  found;  and  the  judge  shall  deliver  to  the  grand  jury,  as 
soon  as  they  are  sworn,  one  copy  of  each  of  the  said  calendars,  together 
with  all  the  examinations,  depositions  and  other  documents  returned  by 
the  magistrate,  and  shall  also  send  to  them  all  such  other  returns  as 
shall  be  afterwards  made  by  any  magistrate  during  the  session  of  the 
grand  jury.  Provided  that  the  said  calendar  before  it  is  sent  to  the 
grand  jury,  shall  be  submitted  to  the  public  prosecutor,  who  shall  mark 
thereon  such  cases  of  misdemeanor  as  he  shall  choose  to  prosecute  by 
information,  and  the  papers  and  documents  relative  to  such  cases  shall 
not  be  vsent  to  the  grand  jury,  and  it  shall  be  the  duty  of  the  public  pro- 
secutor to  file  informations  in  all  such  cases  before  the  end  of  the  term. 


CHAPTER  III. 


Of  the.  grand  jury,  its  organization  and  its  duties. 

Art.  224.  The  grand  jury  is  a  body  of  men,  taken  at  stated  periods, 
from  the  mass  of  citizens,  to  perform  a  most  important  function  in  the 
administration  of  justice.  It  is  their  duty  to  protect  the  innocent  from 
accusation,  but  to  discover  and  bring  the  guilty  to  trial.  They  have  no 
political  nor  any  other  civil  powers,  and  must  confine  their  deliberations 
to  inquiries  whether  there  have  been  infractions  of  the  penal  laws  of 
the  state,  and  who  have  been  the  offenders :  no  other  presentments  or 
expressions  of  their  opinions  can  be  received  in  a  court  of  justice,  ex- 
cept in  cases  where  special  duties  may  be  imposed  upon  them  by  law. 

Art.  225.  The  grand  jury  consists  of  twenty-three  members,  who 
are  selected  in  the  manner  prescribed  by  special  laws  for  that  purpose: 
the  consent  of  a  majority  of  the  whole  number  is  necessary  to  make  an 
indictment ;  but  a  majority  of  those  present  may  decide  on  any  other 
question  arising  in  the  course  of  their  deliberations.  No  grand  jury 
can  proceed  to  any  business,  unless  thirteen  members  at  least  are 
present. 

Art.  226.  The  grand  jurors,  before  they  enter  on  the  exercise  of  their 
duties,  shall  each  take  the  oath  prescribed  for  that  purpose  by  this  Code. 

Art.  227.  A  judge  of  the  court  in  which  the  grand  jury  shall  be  con- 
vened, shall  immediately  after  they  are  sworn,  give  them  such  infor- 
mation as  he  may  deem  proper  as  to  the  nature  of  their  duties,  and 
draw  their  attention  to  such  offences  as  are  on  the  calendar,  or  as  he 
has  reason  to  believe  will  be  brought  before  them  ;  confining  his  ob- 
servations to  the  subjects  connected  with  their  duties  as  jurors,  and 
carefully  avoiding  all  topics  of  political  or  party  nature:  he  shall  read 
to  them  such  parts  of  the  Penal  Code  as  relate  to  the  several  offences 
on  their  calendar,  together,  with  the  whole  of  this  chapter. 

Art.  228.  When  the  grand  jury  has  received  the  address  of  the  court, 
they  shall  retire  to  the  chamber  appointed  for  their  deliberations.  Two 
constables  or  deputies  of  the  sheriff  shall  be  appointed  to  be  constantly 


CODE  OF  PROCEDURE.  515 

in  attendance  on  them,  the  one  as  door-keeper,  the  other  as  messenger 
to  carry  the  orders  and  citations  which  they  may  issue. 

Art.  229.  The  first  act  of  the  jury,  after  having  retired,  shall  be  to 
organize  themselves,  by  electing  two  of  their  members,  the  one  to  pre- 
side at  their  sittings,  to  be  called  the  foreman  of  the  grand  jury,  the 
other  to  be  their  clerk :  this  choice  shall  be  made  by  ballot,  and  the 
members  having  the  greatest  number  of  votes  for  these  places,  shall 
respectively  be  elected.  If  two  persons  shall  have  an  equal  number  of 
votes  for  the  same  place,  this  fact  shall  be  reported  to  the  court,  and 
the  judge  shall  determine  which  shall  be  elected.  As  soon  as  an  elec- 
tion shall  be  made,  a  message  shall  be  sent  by  one  of  the  members  of 
the  grand  jury  to  the  court,  stating  which  members  have  been  respec- 
tively chosen. 

Art.  230.  The  deliberations  of  the  grand  jury  shall  be  secret:  no  one 
shall  be  admitted  while  they  are  silting  but  the  public  prosecutor,  and 
such  persons  as  may  be  sent  for  or  appear  as  witnesses,  or  may  come 
to  make  complaint  or  give  information  relative  to  the  infraction  of  any 
penal  law.  Every  one  announcing  himself  as  complainant  or  inform- 
ant against  such  infraction,  must  be  admitted  and  heard  at  such  time  as 
the  grand  jury  will  permit. 

Art.  231.  The  public  prosecutor  shall  have  access  to  the  grand  jury 
whenever  he  may  have  any  information  or  advice  on  any  point,  of  law 
to  give,  or  any  complaint  or  evidence  to  lay  before  them,  or  whenever 
his  attendance  is  required  by  the  grand  jury  or  any  member  thereof 
who  may  desire  his  advice  ;  but  he  must  not  be  present  at  their  delib- 
erations or  decisions. 

Art.  232.  The  grand  jury  are  to  decide  on  all  the  cases  on  the  two 
calendars  whether  there  is  matter  for  accusation  ;  this  is  not  left  to  the 
discretion  of  the  public  prosecutor:  therefore,  it  shall  be  the  duty  of  the 
public  prosecutor  to  prepare  bills  of%  indictment  in  all  cases  of  crimes 
appearing  on  the  calendars,  and  in  all  such  cases  of  misdemeanor  as  he 
shall  not  choose  to  prosecute  by  information,  and  to  send  them  lo  the 
grand  jury,  beginning  with  the  cases  of  those  who  are  in  actual  custody, 
and  among  those,  sending  in  first  the  cases  of  crimes  highest  in  degree. 
He  can  only  depart  from  this  order  when  material  witnesses  summoned 
or  under  recognizance  to  appear,  have  not  appeared,  and  he  has  rea- 
son to  expect  their  attendance.  For  the  purpose  of  preparing  these 
indictments,  copies  of  the  examinations,  depositions  and  other  papers 
returned  by  the  magistrates,  shall  be  sent  to  him  by  the  clerk  within 
three  days  after  they  are  filed,  and  except  in  cases  in  which  the  returns 
are  made  within  three  days  of  the  meeting  of  the  grand  jury,  it  is  the 
duty  of  the  public  prosecutor  to  prepare  all  such  bills  of  indictment  by 
the  first  day  of  the  term. 

Art.  233.  If  any  of  the  grand  jury  know  or  have  reason  to  believe 
that  an  offence  has  been  committed,  within  the  jurisdiction  of  the  court 
in  which  they  are  sworn,  he  is  bound  by  his  oath  to  declare  the  same 
to  his  fellow  jurors,  excepting  such  offences  as  can  be  presented  on  the 
complaint  of  the  party  injured  only,  and  the  jury  shall  thereupon  take 
up  the  consideration  thereof  in  their  order. 

Art.  234.  Any  individual  having  a  knowledge  of  the  commis.sion  of 
any  offence,  may  apply  to  the  grand  jury,  who  are  bound  to  hear  his 
complaint  and  take  his  own  declaration  or  oath,  and  that  of  such  oilier 
witnesses  as  he  may  point  out  to  them. 


516  CODE  OF  PROCEDURE. 

Art.  235.  The  grand  jury  may  issue  a  summons  ordering  the  attend- 
ance of  any  witness,  and  if  he  fail  to  attend,  may  issue  an  order  di- 
recting the  sheriff  to  arrest  and  bring  him  before  them,  and  if  he  shall 
refuse  to  be  sworn  or  to  testify,  they  may  by  a  like  order  commit  him 
to  prison,  and  he  shall  not  be  released  until  the  grand  jury  are  finally 
discharged,  unless  he  consent  to  be  sworn  and  give  testimony  as  or- 
dered, and  he  shall  moreover  be  liable  to  such  punishment  as  in  such 
case  is  provided  by  the  Code  of  Crimes  and  Punishments. 

Art.  236.  Every  summons,  order  of  arrest  or  other  order  of  the 
grand  jury,  shall  issue  in  the  name  of  the  grand  jury,  (specifying  the 
parish  or  district  for  which  they  are  sworn)  and  shall  be  signed  by  the 
foreman  and  attested  by  the  clerk. 

Art.  237.  When  the  foreman  or  clerk  are  disabled  from  sickness,  or 
for  other  cause  have  been  discharged  or  excused  from  attendance  by 
the  court,  other  members  of  the  jury  may  be  chosen  in  their  places 
during  such  disability. 

Art.  238.  When  an  indictment  is  found  or  the  jury  decide  in  the 
manner  hereinafter  provided,  that  there  is  matter  of  accusation  for  any 
offence  against  a  person  who  is  neither  in  custody  nor  on  bail,  or  if  on 
bail,  is  bailed  for  an  offence  less  in  degree  than  that  found,  it  shall  be 
the  duty  of  the  public  prosecutor  to  apply  for,  and  of  the  judge  to  grant 
a  warrant  of  arrest  for  the  offence  stated  in  the  indictment  or  present- 
ment, commanding  the  sheriff  to  arrest  and  keep  in  safe  custody  the 
person  therein  named,  who  is  charged  with  the  commission  of  an  of- 
fence (naming  it)  by  the  grand  jury. 

Art.  239.  The  warrant  shall  be  in  the  form  hereinafter  prescribed, 
and  shall  be  executed  in  the  manner  directed  with  respect  to  ordinary 
warrants  for  arrest,  except  that  no  examination  can  take  place  before 
the  magistrate  on  any  other  point  than  that  of  the  identity  of  the  per- 
son; if  no  objection  of  this  nature  be  made,  or  if  made,  be  not  supported 
by  proof,  the  magistrate  must  either  commit  or  bail  the  prisoner,  ac- 
cording to  the  rules  established  for  that  purpose  on  ordinary  arrests. 

Art.  240.  In  their  deliberations,  the  grand  jury  are  to  proceed  in  the 
following  order :  the  calendars  are  to  be  read  and  they  shall  take  up  for 
consideration,  first:  the  causes  of  those  who  are  in  custody,  beginning 
with  the  greatest  in  degree.  The  indictment  sent  in  by  the  public 
prosecutor  shall  be  then  read,  together  with  the  examinations  and  other 
documents  returned  by  the  magistrates.  The  witnesses  shall  then  be 
examined,  and  if  any  member  requires  the  advice  of  the  public  prose- 
cutor, he  may  be  called,  heard,  and  after  he  has  retired,  the  foreman 
shall  again  read  the  indictment  and  put  the  following  questions  to  the 
jury : 

1.  Whether  they  find  that  the  offence  stated  in  the  indictment  has 
been  committed. 

2.  Whether  it  was  committed  by  the  person  accused  in  the  indict- 
ment. 

Each  of  these  questions  shall  be  debated  and  decided  separately,  and 
on  each  the  jury  may,  with  the  assent  of  twelve  members,  make  any 
amendments  or  alterations  in  the  indictment,  either  in  the  descrip- 
tion and  circumstances  of  the  offence,  according  to  their  view  of  the 
testimony  and  law,  or  in  the  name  or  description  of  the  offender,  if 
another  person  than  the  accused  in  the  indictment  appears  to  have 
committed  the  offence, 


CODE  OF  PROCEDURE.  517 

If  both  the  questions  above  stated  are  decided  in  the  affirmative  by 
twelve  jurors,  the  indictment  shall  then  be  signed  by  the  foreman  and 
clerk,  respectively  by  each,  adding  to  his  name  the  quality  in  which 
he  signs.  When  thus  signed,  the  indictment  is  said  to  be  found. 

Art.  241.  In  cases  where  the  public  prosecutor  has  not  sent  an  in- 
dictment, the  grand  jury,  after  hearing  the  testimony,  shall  in  like 
manner  decide,  1.  Whether  an  offence  has  been  committed,  and  what 
that  offence  is;  and,  2.  Who  is  the  offender.  And  if  it  result  from  the 
decision  of  these  questions,  that  twelve  jurors  are  of  opinion,  that  any 
designated  person  has  been  guilty  of  an  offence,  the  clerk  shall  certify 
that  there  is  matter  for  accusation  against  the  person  (naming  him)  for 
such  an  offence  (designating  it),  and  shall  deliver  such  certificate  with  a 
minute  of  the  evidence  to  the  public  prosecutor;  who  shall  immediately 
send  an  indictment  to  the  grand  jury,  conformable  to  the  fact  and  law, 
which  indictment,  before  it  can  have  any  force,  must  be  found  in  the 
manner  above  directed. 

Art.  242.  If  the  grand  jury  decide  that  they  have  not  sufficient  evi- 
dence, either  that  the  offence  was  committed,  or  that  it  was  committed 
by  the  person  accused  (whether  this  decision  be  made  on  an  indictment 
or  under  the  last  preceding  clause,  where  no  indictment  has  been  pre- 
sented), a  certificate  shall  be  sent  to  the  court,  stating  that  the  grand 
jury  find  no  cause  of  accusation  against  such  person  (naming  him)  for 
the  offence  of  which  he  is  charged  (specifying  it),  which  certificate 
shall  be  signed  by  the  foreman  and  attested  by  the  clerk.  Whereupon 
such  person,  if  in  custody,  shall  be  discharged,  or  if  bailed,  the  bail 
bond  shall  be  cancelled  ;  but  such  finding  and  discharge  shall  not  pre- 
vent another  accusation  for  the  same  cause,  if  other  testimony  be  pro- 
duced ;  nor  shall  the  party  be  discharged  either  from  custody  or  from 
his  bail,  if  he  be  detained  or  bailed  for  any  other  cause  than  that  which 
has  been  examined  by  the  grand  jury:  Provided  also,  that  no  discharge 
shall  be  ordered  on  any  such  certificate  until  the  public  prosecutor  have 
had  notice  thereof,  and  if  he  shall  declare  to  the  court  that  he  has  other 
evidence  against  the  accused,  which  in  his  opinion  will  justify  a  com- 
mitment, the  discharge  shall  be  delayed  twelve  hours  to  enable  him  to 
produce  such  testimony. 

Art.  243.  No  record  shall  be  kept  of  the  manner  in  which  any 
member  of  the  grand  jury  has  voted  on  any  question  before  them  ;  nor 
can  any  member  be  obliged  or  allowed  to  declare,  even  in  a  court  of 
justice,  in  what  manner  he  or  any  other  member  of  the  grand  jury 
voted  on  any  such  question,  or  what  opinions  they  expressed.  But  they 
may  be  called  on  in  any  court  of  justice  (in  cases  where  evidence  of 
that  nature  is  otherwise  legal)  to  show  that  the  testimony  of  a  witness 
examined  before  the  grand  jury  was  different  from  or  consistent  with 
that  given  before  such  court. 

Art.  244.  Every  indictment  found  by  the  grand  jury  shall  be  deliv- 
ered by  the  clerk  into  the  hands  of  the  presiding  judge  in  open  court, 
and  if  the  person  indicted  be  in  custody  or  bailed  for  the  offence  of 
which  he  is  indicted,  the  judge  shall  deliver  the  indictment  to  the  clerk 
to  be  filed.  But  if  the  person  indicted,  be  not  in  custody  or  not  bailed 
for  the  offence  of  which  he  was  indicted,  then  the  judge  shall  retain 
such  indictment  until  the  party  be  arrested,  or  until  the  last  day  of  the 
term,  if  he  be  not  arrested  before,  and  shall  then  deliver  it  to  the  clerk 
to  be  filed. 


518  CODE  OF  PROCEDURE. 

Art.  245.  The  grand  jury  cannot  be  discharged  during  the  term, 
until  they  have  decided  on  all  the  causes  on  the  calendar,  and  on  all 
complaints  before  them,  nor  then  without  the  order  of  the  court ;  until 
discharged,  they  must  meet  every  day  while  they  have  any  business 
before  them  ;  but  they  may  determine  their  own  hours  of  meeting  and 
adjournment.  When  they  have  no  business  immediately  before  them, 
hut  are  waiting  for  witnesses,  or  on  any  other  account,  they  may  ad- 
journ with  leave  of  the  court,  for  any  term  not  exceeding  three  days. 

When  the  term  of  the  court  to  which  the  grand  jury  is  summoned, 
expires,  eitheir  by  its  limitation  or  the  adjournment  of  the  court,  the 
functions  of  the  grand  jury  cease. 

Art.  246.  The  grand  jury  has  a  right  to  ask  the  instruction  and 
opinion  of  the  court  on  any  point  of  law  on  which  one-third  of  the 
grand  jurors  present  may  be  dissatisfied  with  the  opinion  of  the  pub- 
lic prosecutor.  In  order  to  obtain  such  instruction  the  grand  jury  shall 
come  into  court,  and  if  the  matter  on  which  they  desire  to  consult  the 
court,  requires  secrecy,  the  foreman  shall  so  state  to  the  judge,  and 
thereupon  the  judge  shall  cause  all  persons  to  leave  the  court  until  he 
shall  have  heard  the  questions  of  the  grand  jury  and  given  his  opinion 
and  instruction  thereon.  After  hearing  which,  the  said  jury  shall 
retire  to  thir  own  chamber  to  deliberate,  but  are  not  bound  to  decide  in 
conformity  with  such  opinion  or  instruction. 

Art.  247.  Fines  not  exceeding  for  any  one  infraction  thirty  dollars, 
may  be  imposed  by  the  court  on  such  grand  jurors  as  fail  in  their  at- 
tendance at  any  time  during  the  term.  The  grand  jury  may  themselves, 
in  addition  thereto,  impose  fines  not  exceeding  ten  dollars,  to  insure 
punctuality  in  attending  at  the  hour  to  which  they  may  have  adjourned. 
Such  fines  to  be  collected  in  the  same  manner  with  other  fines  by  the 
sheriff,  on  the  warrant  of  the  foreman,  and  appropriated  to  such  char- 
itable institution,  as  the  grand  jury  shall  direct. 

Art.  248.  Grand  jurors  cannot,  during  the  time  of  their  attendance 
as  such,  be  arrested  for  any  misdemeanor,  nor  on  any  civil  suit,  except 
for  a  breach  of  the  peace  committed  during  the  time  they  are  thus  pri- 
vileged ;  nor  for  five  days  previous  to  the  day  for  which  they  are  sum- 
moned, nor  two  days  after  their  discharge  :  and  any  one  who  shall 
arrest  or  cause  to  be  arrested,  any  person  summoned  as  grand  juror, 
knowing  him  to  be  such,  contrary  to  the  provisions  of  this  act,  shall  be 
fined  not  less  than  thirty  nor  more  than  one  hundred  dollars  ;  and  the 
grand  juror  so  arrested  shall  be  discharged  from  such  arrest,  and  may 
recover  such  damages  as  he  may  be  entitled  to  by  a  civil  suit. 

Art.  249.  The  functions  of  a  grand  juror  require  to  be  exercised  with 
the  most  perfect  freedom  of  opinion,  of  debate  and  action  ;  therefore 
it  is  his  duty  to  keep  secret  whatever  he  himself  or  any  other  juror  may 
have  said,  or  in  what  manner  he  or  they  may  have  voted,  on  any  par- 
ticular question  or  matter  legally  before  them  ;  and  any  person  offend- 
ing against  the  provisions  of  this  article  is  guilty  of  a  misdemeanor, 
and  shall  be  fined  not  less  than  thirty  dollars  nor  more  than  one  hun- 
dred dollars. 

Art.  250.  No  grand  juror  shall,  directly,  or  indirectly,  give  informa- 
tion to  any  one  that  an  accusation  or  complaint  is  pending  before  the 
grand  jury,  if  the  person  accused  has  not  been  arrested  on  such  accusa- 
tion or  complaint  ;  and  any  one  offending  against  this  provision,  is 
guilty  of  a  misdemeanor,  and  shall  be  fined  not  less  than  fifty  nor  more 


CODE  OF  PROCEDURE.  519 

than  two  hundred  dollars,  unless  such  information  was  given  with  in- 
tent that  the  person  accused  should  escape  or  avoid  an  arrest,  in  which 
case,  the  juror  giving  such  information  shall  also  be  deemed  to  be  an 
accessary  to  the  offender,  whose  escape  he  intended  to  promote. 

Art.  251.  No  grand  juror  shall  be  prosecuted  or  sued  for  any  thing 
he  may  say  or  any  vote  he  may  give,  in  the  grand  jury,  relative  to  any 
matter  legally  pending  before  the  jury  ;  provided,  that  nothing  herein 
contained  shall  prevent  the  prosecution  and  punishment  of  any  grand 
juror  who  shall  be  guilty  of  perjury  in  making  any  accusation  or  giving 
any  evidence  to  his  fellow  jurors  ;  and  in  the  case  contemplated  by  this 
proviso,  the  jurors  are  not  bound  by  their  oath  nor  by  any  of  the  pre- 
ceding articles,  to  keep  such  perjury  secret. 


CHAPTER  IV. 


Of  indictments  and  informations. 

Art.  252.  No  OFFENCE  can  be  prosecuted  except  by  indictment  or 
information.  This  rule  is  modified  in  cases  of  certain  fines  and  of 
contempt,  in  the  manner  specially  provided  for. 

Art.  253.  An  indictment  is  an  act  in  writing  made  by  a  grand  jury 
legally  convoked  and  sworn,  declaring  that  a  person  therein  named  or 
described,  has  done  some  act  or  has  been  guilty  of  some  omission  which 
is  by  law  declared  to  be  an  offence. 

The  indictment  shall  be  in  the  following  form  : 

"To  the  district  court  of  the  district  (or  the  criminal  court,  giving 
the  style  of  the  court  as  the  case  may  be). 

"The  grand  jurors  for  the  (name  the  parish  and  district)  on  their 
oath  present,  that  A.  B.  on  the  day  of  in  the  year 

in  the  parish  of  did  (here  insert  the  act  constituting  the  offence) 

contrary  to  the  laws  of  this  state  and  the  peace  and  dignity  of  the 
same. 

C.  D.  Foreman. 
E.  F.  Clerk." 

Art.  254.  No  indictment  shall  be  deemed  deficient  in  form  for  any 
variance  from  that  contained  in  the  preceding  article,  provided  it  can 
be  understood  : 

1.  That  the  same  was  presented  to  some  court  having  jurisdiction  of 
the  offence  stated  in  the  indictment,  although  the  title  of  the  said  court 
may  not  be  accurately  set  forth. 

2.  That  it  may  be  also  understood  from  the  said  indictment  that  it 
was  found  by  a  grand  jury,  convened  for  the  parish  or  district  in  which 
such  court  sat. 

3.  That  the  person  accused  is  named,  or  if  his  name  cannot  be  dis- 
covered, that  he  be  described  as  "a  person  refusing  to  discover  his 
name,"  which  shall  be  sufficient  description  ;  but  if  on  his  arraignment 
the  accused,  so  described,  shall  assume  some  name,  the  name  so  as- 
sumed shall  be  inserted  in  the  indictment  and  taken  as  the  true  name. 
No  addition  is  necessary  to  the  name,  but  if  a  false  one  be  given, 


520  CODE  OF  PROCEDURE. 

it  can  only  be  corrected  in  the  manner  stated  under  the  head  of  arraign- 
ment. 

4.  That  the  offence  is  alleged  to  have  been  committed  at  some  place 
which  is  within  the  jurisdiction  of  the  court,  except  in  cases  where  the 
act,  though  done  without  the  local  jurisdiction  of  the  court,  is  made 
cognizable  therein  by  law. 

5.  That  the  offence  is  alleged  to  have  been  committed  at  some  time 
which  is  prior  to  the  time  of  finding  the  indictment,  and  where  there 
is  a  limitation  of  time  for  commencing  the  prosecution,  within  such 
limitation. 

6.  That  the  act  or  omission  charged,  be  so  clearly  and  distinctly  set 
forth,  as  to  enable  a  man  of  common  understanding  to  know  what  is 
intended. 

7.  That  the  indictment  be  signed  by  the  foreman  and  the  clerk  of 
the  grand  jury,  and  that  the  day  on  which  it  was  presented  to  the  court 
be  noted  thereon. 

8.  That  the  name  be  set  forth  of  the  party  injured,  if  a  private 
offence,  but  if  the  names  are  unknown  to  the  grand  jury,  it  may  be  so 
stated. 

9.  That  it  concludes  with  the  words  "  contrary  to  the  laws  of  this 
state,  and  the  peace  arid  dignity  of  the  same,"  which  are  required  by 
the  constitution. 

Art.  255.  The  words  used  in  an  indictment,  shall  be  taken  and 
construed  in  their  usual  acceptation  in  common  language,  except  such 
words  and  phrases  as  are  particularly  defined,  which  are  to  be  taken  in 
the  sense  herein  given  to  them. 

Art.  256.  It  is  not  necessary  to  state  in  the  indictment  any  particu- 
lar place  in  the  parish  for  the  commission  of  the  offence,  or  to  aver 
that  it  was  done  within  the  jurisdiction  of  the  court,  but  it  will  be  suffi- 
cient to  state  that  it  was  done  within  the  parish,  naming  it,  if  such 
parish  be  actually  within  the  jurisdiction  of  the  court. 

Art.  257.  Where  the  offence  shall  have  been  begun  in  one  parish  or 
district,  and  become  complete  in  another  parish  or  district,  the  offen- 
der may  be  tried  in  either  of  the  districts  or  parishes,  and  the  offence 
may  be  stated  to  have  been  done  in  either  of  the  said  parishes  or  dis- 
tricts, and  proof  that  the  offence  was  either  begun  or  completed  in  the 
parish  or  district  where  it  is  charged  to  have  been  done,  shall  be  suffi- 
cient to  support  the  indictment. 

Art.  258.  Accomplices  and  accessaries  to  offences  begun  in  one 
parish  or  district,  and  which  become  complete  in  another,  may  in 
like  manner  be  prosecuted  in  either  of  the  said  parishes  or  districts, 
and  the  offender  may  also,  as  in  case  of  principals,  be  stated  in  the 
indictment  to  have  been  done  in  either,  and  proof  thereof  shall  in 
like  manner  support  the  indictment. 

Art.  259.  Where  any  act  done  out  of  the  state  is  made  an  offence 
by  the  Penal  Code,  the  offender  may  be  tried  in  the  parish  or  district 
in  which  he  is  apprehended. 

Art.  260.  If  any  one  out  of  the  state  or  in  one  parish  or  district 
of  the  state,  shall  procure  another  person  to  commit  an  offence  within 
another  parish  of  the  state,  he  may  be  indicted  and  tried  in  the  place 
where  the  offence  was  committed,  and  that  whether  the  person  doing 
the  act,  were  an  innocent  or  guilty  agent 


CODE  OF  PROCEDURE.  521 

Art.  261.  It  is  not  necessary  to  state  the  place  in  which  an  indict- 
ment is  found  in  the  margin  of  the  indictment. 

Art.  262.  Every  thing  necessary  to  be  stated  must  be  truly  stated 
in  the  indictment :  there  are  no  legal  fictions. 

Art.  263.  Every  indictment  must  describe  the  offence  with  such 
certainty,  as  to  enable  the  accused  to  plead  the  judgment  that  may  be 
given  on  it,  in  bar  of  any  prosecution  for  the  same  offence. 

Art.  264.  The  precise  time  at  which  the  offence  was  committed 
need  not  be  stated  in  the  indictment,  provided  it  be  laid  to  have  been 
done  before  the  time  of  presenting  the  indictment ;  but  where  the 
time  is  material  to  the  description  of  the  offence,  it  must  be  alleged 
with  the  same  certainty  that  is  described  in  the  definition  of  the  of- 
fence. 

Art.  265.  Rules  and  forms  are  given  in  a  subsequent  chapter  for 
drawing  indictments  and  informations,  in  each  particular  oifence ; 
where  those  forms  or  rules  vary  from  those  contained  in  this  chapter, 
the  particular  rules  or  forms  are  to  prevail  in  that  offence  for  which 
the}'  are  intended. 

Art.  266.  When  any  circumstance  is  expressly  made  an  aggrava- 
tion of  the  ofience,  such  circumstance  must  be  set  forth  in  the  indict- 
ment. 

Art.  267.  Where  a  repetition  of  the  offence  is  intended  to  be  relied 
on  as  an  aggravation  of  the  punishment,  the  indictment  must  set  forth 
the  preceding  conviction,  with  the  exceptions  hereinafter  mentioned. 

Art.  268.  Where  the  intent  is  a  material  part  in  the  description  of 
the  offence,  it  must  be  stated  in  the  indictment. 

Art.  269.  Every  indictment  for  forgery,  or  for  making,  altering, 
passing,  or  having  in  possession  any  instrument  in  writing,  contrary  to 
any  of  the  provisions  of  the  chapter  of  the  Code  of  Crimes  and  Punish- 
ments relative  to  "Offences  affecting  the  credit  of  written  instruments," 
or  for  any  other  offences  founded  on  written  instruments,  shall,  with 
the  exception  contained  in  the  next  article,  contain  an  exact  copy 
of  such  instrument,  expressing  in  words  whatever  is  so  expressed  in 
the  instrument,  and  in  figures,  what  in  the  instrument  is  expressed 
in  figures,  but  no  ornamental  engraving  or  writing  contained  in  the 
instrument,  need  be  imitated  in  the  copy. 

Art.  270.  The  only  case  in  which  an  indictment  for  either  of  the 
offences  mentioned  in  the  last  article,  shall  be  good  without  containing 
a  copy  of  the  instrument,  is,  where  the  instrument  has  been  destroyed 
by  the  act  or  procurement  of  the  accused,  in  which  case  that  fact  may 
be  charged  in  the  indictment,  and  must  on  the  trial  be  proved  ;  and 
instead  of  the  copy,  the  instrument  must  be  described  in  the  indict- 
ment with  so  much  certainty  as  to  make  it  appear  that  it  was  one  of 
those  which  are  made  punishable  by  the  system  of  Penal  Law. 

Art.  271.  To  every  indictment  for  any  of  the  offences  above  enu- 
merated, except  in  the  case  mentioned  in  the  last  article,  and  in  the 
case  of  forgery  or  other  offence  relating  to  a  public  record,  the  fore- 
man of  the  grand  jury  shall  annex  the  instrument  on  which  the  indict- 
ment is  found,  and  shall  mark  the  same,  by  writing  on  some  part 
thereof,  the  initials  of  his  name,  and  the  said  instrument  shall  re- 
main annexed  to  the  said  indictment,  unless  it  shall  be  withdrawn  by 
leave  of  the  court. 

Art.  272.   In  the  case  above  of  an  offence  relating  to  a  public  record, 
3  Q 


522  CODE  OF  PROCEDURE. 

the  book  in  which  it  is  kept  shall  be  produced  and  marked  by  the 
foreman  of  the  grand  jury  ;  and  shall  again  be  brought  into  court,  and 
verified  to  be  the  same,  without  alteration,  as  it  was  produced  to  the 
grand  jury  ;  and  shall  be  exhibited  to  the  defendant,  previous  to  his 
arraignment,  when  he  is  called  on  for  his  exceptions  to  the  indict- 
ment, in  the  manner  prescribed  in  the  next  chapter. 

Art.  273.  In  case  of  any  defamation  by  writing  or  printing,  painted 
or  inscribed  on  a  building,  or  on  an  article,  too  bulky  to  be  produced 
in  court,  a  copy  or  description  may  be  inserted  in  the  ACT  OF  ACCUSA- 
TION, and  proof  of  the  fact  be  given  on  the  trial,  without  producing 
the  painting  or  writing,  or  showing  it  to  the  accused. 

Art.  274.  In  cases  of  libel,  the  indictment  or  information  need  not 
contain  the  whole  of  the  work,  but  only  so  much  as  is  charged  to  be 
libellous,  but  the  whole  must  be  annexed  to  the  act  of  accusation. 

Art.  275.  In  an  indictment  for  any  of  the  offences  created  by  the 
said  chapter  of  offences  affecting  the  credit  of  written  instruments,  it 
shall  not  be  necessary  to  charge  that  the  instrument  on  which  the  in- 
dictment is  brought,  would,  if  true,  have  had  any  of  the  effects  enumer- 
ated in  the  article  containing  the  definition  of  the  offence,  or  specifying 
what  the  effect  would  be,  or  to  name  any  particular  person,  whom  it 
was  the  intent  of  the  accused  to  defraud  ;  or  to  state  otherwise  than  by 
the  copy  thereof,  what  the  said  instrument  purported  to  be,  or  in  any 
act  of  accusation  whatever,  to  charge  that  the  offence  was  committed 
against  the  form  of  any  particular  statute. 


CHAPTER  V. 


Of  the  proceedings  between  the  indictment  and  the  trial. 

Art.  276.  It  shall  be  the  duty  of  the  clerk  of  the  court,  in  which 
any  indictment  or  information  for  any  offence  is  filed,  within  three 
days  after  the  same  shall  have  been  filed,  to  make  a  copy  thereof, 
and  to  deliver  the  same  to  the  sheriff,  to  be  served  on  the  accused,  or 
on  his  bail  ;  and  no  one  shall  be,  without  his  assent,  arraigned  or 
called  on  to  answer  any  indictment  or  information,  until  three  whole 
days  have  elapsed  after  the  copy  shall  have  been  served  as  aforesaid 
exclusive  of  the  days  of  service  and  arraignments. 

Art.  277.  Two  days,  at  the  least,  after  having  received  the  copy  of 
the  indictment,  and  one  day  at  the  least  before  his  arraignment,  the 
accused  shall  be  brought  into  court,  and  the  instrument  (if  there  be 
any)  annexed  to  the  indictment  shall  be  exhibited  to  him  ;  and  he  and 
his  counsel  shall,  in  the  presence  of  an  officer  of  the  court,  have  rea- 
sonable time  allowed  them  to  compare  the  said  instrument  with  the 
copy  set  forth  in  the  indictment,  and  to  consider  of  any  exception  they 
may  think  proper  to  make  to  the  indictment. 

Art.  278.  After  the  exhibition  of  the  instrument,  as  is  above  pro- 
vided for,  and  after  the  expiration  of  the  time  allowed  for  the  examina- 
tion thereof,  in  cases  where  there  is  any  instrument  annexed,  and 
in  cases  where  there  is  no  instrument  annexed,  then  at  such  time  as 
the  court  shall  direct,  at  least  two  days  after  the  service  of  the  indict- 
ment, and  at  least  one  day  before  the  arraignment,  the  accused  shall 


CODE  OF  PROCEDURE.  523 

be  brought  into  court,  and  he  must  be  told  by  the  clerk  that  if  he  has 
any  exception  to  make  to  the  indictment,  for  any  want  of  substance  or 
form,  or  for  any  variance  between  the  said  indictment  and  the  instru- 
ment thereunto  annexed,  or  for  that  he,  the  accused,  is  not  indicted  by 
his  true  name,  that  he  must  then  make  such  exception,  or  that  no  such 
exception  will  hereafter  be  heard. 

Art.  279.  If  the  accused  shall  make  no  such  exception,  an  entry 
shall  be  made  on  the  back  of  the  indictment  to  that  effect,  and  the 
accused  shall  be  remanded  to  prison  if  in  custody,  or  to  his  bail,  if  he 
be  out  on  bail,  until  the  time  of  his  arraignment;  and  no  motion  for 
quashing  the  indictment,  or  for  an  arrest  of  the  judgment,  shall  be  made 
on  account  of  any  of  the  exceptions  mentioned  in  the  last  article,  ex- 
cept as  is  hereafter  provided  in  this  chapter. 

Art.  2SO.  If  the  accused  shall  allege  for  exception,  that  he  is  not 
indicted  by  his  true  name,  he  must  state  what  such  true  name  is ;  and 
the  prosecuting  officer  may  then  immediately  amend  the  indictment 
by  inserting  such  name,  which  the  accused  shall  not  be  permitted  at 
any  time  afterwards  to  disavow. 

Art.  281.  If  the  accused  shall  make  any  exception  to  any  want  of 
form  in  the  indictment,  or  to  any  variance  between  the  instrument  of 
writing  and  the  copy  in  the  indictment,  the  public  prosecutor  may,  if 
he  think  the  said  exceptions  well  taken,  immediately  amend  such  de- 
fect of  form  or  variance. 

It  shall  be  optional  with  the  accused  to  make  the  exceptions  men- 
tioned in  the  preceding  articles,  verbally  or  in  writing  ;  if  verbally 
made,  the  judge  shall  take  a  note  of  them  in  writing,  which  shall  be 
read  to  the  accused. 

Art.  282.  In  case  any  amendments  shall  be  made,  either  in  virtue  of 
the  two  preceding  sections,  or  by  permission  of  the  court,  as  is  herein- 
afterwards  provided  for,  the  court  may  allow  such  further  time  for  the 
arraignment  and  trial,  as  they  may  deem  necessary  to  enable  the  ac- 
cused to  prepare  for  his  defence. 

Art.  283.  Whether  the  accused  except  to  any  irregularity  in  the  form 
of  the  indictment,  or  to  any  variance  between  the  indictment  and  the 
copy  of  the  instrument  annexed  to  it,  or  not,  the  public  prosecutor  shall 
be  permitted  to  amend  the  same,  at  any  time  before  the  arraignment. 
If  the  public  prosecutor  shall  not  choose  to  amend  the  indictment  ac- 
cording to  any  exception  made  by  the  accused,  or  if  the  court  shall  be 
of  opinion  that  such  exception  relates  to  matter  of  substance,  and  is  not 
amendable  under  the  provisions  of  this  chapter,  a  day  shall  be  assigned 
for  the  argument  of  such  exceptions,  previous  to  the  arraignment;  and 
if  the  court  shall  allow  such  exception,  and  consider  them  as  matter  of 
substance,  the  accused  may  be  again  indicted  for  the  same  offence,  and 
shall  not  be,  on  that  account,  discharged  ;  but  if  the  court  shall  al- 
low the  exceptions,  after  argument,  but  consider  them  as  matter  of 
form  only,  the  public  prosecutor  may  immediately  amend  them. 

Art.  284.  If  the  grand  jury  which  found  the  indictment  was  illegally 
constituted,  or  not  drawn  or  selected  in  the  manner  directed  by  law, 
or  not  sworn  ;  the  accused  may  except  thereto,  in  the  manner  directed 
by  the  article;  but  if  such  exception  be  allowed,  it  shall  be  con- 

sidered as  a  matter  of  substance,  and  no  amendment  shall  be  allowed. 

Art.  285.  If  the  exception  be  that  it  does  not  appear  by  the  indict- 
ment, for  what  district  the  grand  jurors  were  summoned,  or  in  what 


524  CODE  OF  PROCEDURE. 

court,  or  whether  they  were  sworn  or  not,  or  whether  they  were 
drawn  and  impanelled  in  the  manner  directed  by  law  ;  it  shall  be  con- 
sidered as  matter  of  form  and  amendable,  unless  the  exception  state,  that 
in  point  of  fact  the  grand  jury  were  not  summoned  from  the  proper 
district,  or  were  not  sworn,  or  that  they  were  impanelled  in  another 
court,  or  that  the  forms  prescribed  by  law  were  not  pursued  in  the 
drawing  or  impanelling  their  names,  in  which  case,  if  either  of  the  said 
last  mentioned  exceptions  of  fact  are  allowed,  it  shall  be  considered 
matter  of  substance,  and  shall  not  be  amendable. 

Art.  286.  If  the  exception  be  that  the  copy  of  the  instrument  in 
writing  on  which  the  prosecution  is  founded,  is  not  contained  in  the 
indictment,  or  that  the  original  is  not  annexed  in  cases  where,  by  law, 
such  copy  ought  to  have  been  inserted,  and  such  original  annexed  ;  or 
that  the  time  and  place  is  not  set  forth  at  which  the  offence  is  said  to 
have  been  committed;  or  that  the  action  or  omission  alleged,  is  not  one 
that  is  by  law  created  an  offence  ;  or  that  where  the  intent  is  made  a 
material  part  of  the  offence,  such  intent  is  not  charged;  either  of  these 
exceptions  shall  be  considered  as  matter  of  substance,  and  shall  not  be 
amendable. 

Art.  287.  All  exceptions,  other  than  those  enumerated  in  the  three 
last  preceding  articles,  and  therein  designated  as  exceptions  to  matter 
of  substance,  shall  be  considered  as  exceptions  to  matter  of  form  ;  and 
shall  be  amendable  in  the  manner  hereinbefore  provided  for. 

Art.  288.  After  a  conviction,  no  judgment  shall  be  arrested  for  any 
allegation  of  a  defect,  either  in  substance  or  form,  other  than  this;  that 
the  act  of  accusation  contains  no  charge  of  any  thing  amounting  to  an 
offence,  and  if  such  objection  be  allowed,  another  indictment  or  in- 
formation may  immediately  be  filed,  and  the  defendant  shall  not  be 
discharged,  if  the  proof  adduced  on  the  trial  be  sufficient  to  have  war- 
ranted his  arrest. 

Art.  289.  At  the  time  when  the  accused  is  called  to  make  his  ex- 
ception to  the  indictment,  he  shall  be  asked  by  the  court  whether  he 
has  counsel;  and  if  he  shall  allege  that  he  is  unable  to  procure  counsel, 
the  court  shall  assign  some  licensed  attorney  to  conduct  his  defence 
under  his  direction.  But  the  accused  may  in  all  cases  have  the  advice 
and  assistance  of  any  one  whom  he  may  have  engaged,  whether  licensed 
or  not,  to  aid  him  in  his  defence.  But  such  employment  shall  not  de- 
prive the  prosecutor  of  the  right  of  examining  such  person  as  a  witness, 
to  state  any  facts  which  came  to  his  knowledge,  either  prior  to  the  pro- 
secution, or  which  were  not  confided  to  him  by  the  accused,  after  such 
prosecution  was  commenced. 

Art.  290.  If  the  defendant  make  no  exceptions  to  the  act  of  accusa- 
tion, or  if,  having  made  any,  they  are  overruled,  he  must  ne;ct  ta  ar- 
raigned: this  is  done  by  the  clerk,  who  must  read  to  him  the  act  of 
accusation  in  an  audible  voice,  and  the  judge  must  interrogate  him  by 
asking,  "  Are  you  guilty  of  the  charge  you  have  just  heard  read,  or 
not  guilty?" 

Art.  291.  This  form  must  not  be  dispensed  with,  either  on  a  sugges- 
tion that  the  defendant  knows  the  contents  of  the  act  of  accusation,  or 
out  of  delicacy  to  any  defendant. 

Art.  292.  To  this  interrogatory  of  the  arraignment,  unless  he  plead 
the  special  plea  mentioned  in  the  next  article,  the  defendant  can  only 
answer  in  the  negative  or  the  affirmative:  a  refusal  to  answer,  or  an 


CODE  OF  PROCEDURE.  525 

evasive  or  explanatory  answer,  shall  be  taken  and  recorded  as  an  an- 
swer of  not  guilty. 

Art.  293.  If  the  defendant  have  before  had  judgment  of  acquittal,  or 
been  convicted  of  the  same  offence,  he  must  state  that  matter  specially 
in  writing,  and  to  this  plea  the  public  prosecutor  may  either  demur  if 
it  be  deficient  in  substance,  or  reply  either  that  there  is  no  record  of 
any  such  conviction  or  acquittal  as  is  pleaded,  and  on  the  trial  the  de- 
fendant must  produce  the  record  and  prove  that  he  is  the  same  person 
mentioned  therein. 

Art.  294.  If  the  defendant  answer  in  the  affirmative,  it  shall  not  be 
recorded  until  the  court  shall  have  explained  its  consequence,  and  de- 
sired him  to  reflect,  and  if  he  wishes  it,  to  consult  with  his  counsel:  if 
after  this  he  persevere,  the  confession  shall  be  recorded;  provided  there 
is  no  reason  to  suppose  the  confession  proceeds  from  insanity,  for  which 
purpose,  in  all  cases  of  CRIME  when  the  party  making  the  confession  is 
in  custody,  the  officer  in  whose  charge  he  was,  shall  be  interrogated. 

Art.  295.  When  the  plea  of  not  guilty  is  recorded,  the  public  prose- 
cutor shall,  under  the  direction  of  the  court,  designate  to  the  defendant 
a  day  for  the  trial,  which  shall  not,  without  the  consent  of  the  defend- 
ant, be  less  than  the  third  day  after  that  on  which  the  notice  is  given, 
and  this  time  may  be  prolonged  at  the  instance  of  the  defendant  or  of 
the  public  prosecutor,  under  the  limitations  hereinafter  contained. 

Art.  296.  On  application  to  the  clerk,  process  for  summoning  the 
witnesses,  as  well  on  the  part  of  the  defendant  as  the  public  prosecutor, 
shall  be  made  out  directed  to  the  sheriff  of  any  parish  where  the  witness 
may  be  found,  who  shall  be  bound  to  execute  the  same. 


CHAPTER  VI. 


Of  the  mode  of  drawing  and  summoning  the  jury . 

Art.  297.  All  offences  whatever  must  be  tried  by  jury. 

Art.  298.  All  free  white  persons  of  full  age  and  not  exceeding  sixty 
years  of  age,  who  have  resided  one  year  in  the  parish  in  which  they 
are  called  to  serve,  and  have  paid  taxes  or  been  rated  on  the  tax  list 
either  for  parish,  city  or  state  tax,  or  who  have  resided  six  months  in 
the  parish  and  own  real  property  therein,  whether  they  have  paid  taxes 
or  not,  are  qualified  jurors. 

Art.  299.  The  names  of  all  grand  jurors  and  petit  jurors,  must  be 
drawn  by  lot  before  they  are  put  on  the  panel. 

Art.  300.  For  this  purpose,  in  each  of  the  parishes  of  this  state  in 
which  a  court,  having  criminal  jurisdiction,  shall  sit,  the  parish  judge, 
the  sheriff,  and  two  justices  of  the  peace  to  be  designated  by  the  judge, 
or  a  majority  of  them,  shall  within  thirty  days  after  the  promulgation 
of  this  code,  form  and  sign  a  list  containing  the  names  of  the  persons 
having  the  qualifications  above  enumerated,  who  are  in  their  opinion 
the  best  qualified,  from  their  education  and  character,  to  serve  on  juries. 
Such  list  shall  contain  a  number  of  names  equal  at  least  to  two  thirds 
of  the  number  of  voters  at  the  last  general  election  in  such  parish. 

Art.  301.  In  forming  such  list,  the  persons  aforesaid  shall  consult  the 


526  CODE  OF  PROCEDURE. 

assessment  roll  of  taxes,  and  the  list  of  voles  taken  at  the  general  elec- 
tion next  preceding  the  time  of  making  the  list. 

Art.  302.  No  name  on  the  tax  list  or  list  of  voters,  shall  be  excluded 
from  the  list  so  to  be  formed  but  by  the  unanimous  consent  of  all  the 
persons  hereby  appointed  to  form  it. 

Art.  303.  Any  inhabitant  of  the  parish,  having  the  qualifications  re- 
quired, whose  name  has  been  omitted  on  such  list  for  one  year,  may, 
if  he  desire  it,  have  it  inserted  in  the  next  year's  list,  by  applying 
either  to  the  sheriff  or  the  parish  judge. 

Art.  304.  When  the  list  is  so  signed,  the  same  shall  be  delivered 
to  the  parish  judge  to  be  filed,  and  the  sheriff  shall  immediately,  in  the 
presence  of  the  judge,  of  at  least  one  justice  and  of  as  many  other  citi- 
zens as  choose  to  attend,  proceed  to  write  each  name  contained  on  such 
list  on  a  separate  ballot,  all  as  nearly  as  may  be  of  the  same  size  and 
appearance. 

Art.  305.  The  sheriff  shall  also  provide  two  boxes,  each  having  an 
opening  in  the  top  that  may  be  closed  and  locked  with  two  different 
locks,  and  shall  deposit  the  said  ballots  in  one  of  the  boxes  and  lock 
the  openings  of  both,  delivering  one  of  the  keys  of  each  to  the  judge, 
and  keeping  the  other  himself,  and  shall  keep  both  boxes  in  his  own 
custody. 

Art.  306.  At  some  day,  to  be  designated  by  the  parish  judge,  be- 
tween thirty  and  fifteen  days  before  every  session  of  any  court  of 
criminal  jurisdiction  in  the  parish,  the  said  judge  shall  cause  notice  to 
be  given  to  the  sheriff  and  to  two  justices  of  the  peace,  to  meet  at  such 
place  as  he  shall  direct ;  and  the  judge  shall,  in  their  presence  or  that 
of  a  majority  of  them,  as  often  as  a  grand  jury  shall  be  required  for 
such  court,  draw  at  hazard  from  the  box  containing  the  ballots  the  names 
of  fifty  persons,  out  of  which  the  sheriff  shall  select  ten  and  the  judge 
seven,  and  the  justices  of  the  peace  each  three  names,  which  shall  be 
inserted  on  a  list  to  form  the  panel  for  the  grand  jury,  but  if  only  one 
justice  attend,  he  shall  select  six  names,  and  the  ballots  containing  the 
names  so  selected  shall  be  put  in  the  second  box,  and  the  residue  of  the 
ballots  returned  to  that  from  which  they  were  taken. 

Art.  307.  Forty  ballots  shall  in  like  manner  be  taken  from  the  first 
box,  and  the  names  contained  on  them  shall  be  written  on  a  list  to 
form  the  panel  of  petit  jurors,  for  the  trial  of  causes  in  such  court  at  its 
next  session  ;  and  the  ballots  shall  be  put  in  the  second  box  and  both 
boxes  shall  then  be  locked,  the  keys  delivered  as  before,  and  the  boxes 
kept  in  the  custody  of  the  sheriff. 

Art.  308.  The  two  lists,  or  the  one  (in  case  no  grand  jury  is  drawn), 
shall  then  be  certified  by  the  judge,  the  sheriff  and  at  least  one  justice, 
to  contain  the  names  of  those  who  were  drawn  and  selected  to  serve 
as  grand  jurors  or  drawn  to  serve  as  petit  jurors,  and  shall  be  delivered 
by  the  sheriff  to  the  clerk  of  the  court,  who  shall  file  and  record  the 
same. 

Art.  309.  Any  court  may  by  rule  direct  grand  or  petit  jurors  to  be 
summoned  at  other  periods,  where  the  business  of  the  court  renders  the 
attendance  of  one  set  for  a  whole  session  too  oppressive. 

Art.  310.  Every  year,  within  thirty  days  of  the  lime  the  first  list 
was  made  out,  a  new  list  shall  be  in  like  manner  made,  and  the  ballots 
containing  the  names  shall  be  put  into  the  box  after  destroying  those 
of  the  first  year. 


CODE  OF  PROCEDURE.  527 

Art.  311.  So  many  of  the  names  contained  on  the  list  of  one  year, 
may  be  put  on  that  of  the  succeeding  year,  as  the  persons  intrusted  with 
the  duty  may  deem  proper. 

Art.  312.  As  often  as  the  first  box  shall  be  exhausted,  the  ballots 
contained  in  the  second  shall  be  transferred  to  the  first. 

Art.  313.  On  receiving  such  lists,  it  shall  be  the  duty  of  the  clerk 
to  make  out  a  writ  in  the  form  hereinafter  in  this  code  contained,  with 
a  schedule  annexed  containing  a  true  copy  of  the  list  of  grand  jurors, 
commanding  the  sheriff  to  summon  the  persons  named  in  such  list  to 
attend  as  grand  jurors  at  the  next  session  of  the  court. 

Art.  314.  The  clerk  shall  in  like  manner  make  out  a  writ  for  sum- 
moning the  petit  jury. 

Art.  315.  The  sheriff  shall  execute  such  writs  in  the  manner  they 
command,  by  leaving  a  printed  notice,  containing  the  day  and  place  of 
attendance,  with  each  juror,  or  at  his  place  of  abode,  at  least  six  days 
before  the  return  of  the  writ. 

Art.  316.  Jurors  who  do  not  appear  when  regularly  summoned,  or 
who  depart  without  leave  of  the  court,  or  who  violate  any  legal  rule 
for  preserving  order  in  the  course  of  judicial  proceedings,  may  be  fined, 
for  each  offence,  not  exceeding  ten  dollars,  and  the  court  may  command 
process  to  issue  immediately  for  collecting  it. 


CHAPTER  VII. 
Of  proceedings  in  court  previous  to  the  trial. 

SECTION  I. 

Of  postponing  a  trial. 

Art.  317.  At  any  time  before  the  trial,  the  public  prosecutor  or 
the  defendant  may  apply  to  put  it  off  to  a  future  day,  which  shall  be 
granted  whenever  such  circumstances  shall  appear  to  the  court  by  affi- 
davit, as  show  justice  requires  it.  But  the  defendant,  if  in  custody, 
may  be  discharged,  if  he  is  not  brought  to  trial  in  the  second  term  after 
his  arrest;  and  if  on  bail,  during  the  fourth  term  after  such  arrest :  pro- 
vided the  delay  have  not  taken  place  on  his  application,  and  that  he 
have  been  guilty  of  no  contrivance  to  deprive  the  prosecutor  of  his 
testimony. 

Art.  318.  The  trial  must  also  be  postponed  if  it  appear  that  a  copy 
of  the  panel  of  jurors  has  not  been  delivered  according  to  the  provisions 
hereinafter  contained. 

Art.  319.  On  the  day  of  the  trial,  the  defendant  shall  be  called,  if  he 
be  on  bail,  or  brought  into  court,  if  in  custody:  the  names  of  the  jurors 
shall  then  be  called,  and  if  not  challenged,  or  if  the  challenge  be  over- 
ruled, shall  be  sworn. 

Art.  320.  If  the  trial  be  for  a  misdemeanor,  it  may  proceed  if  the 
defendant  appear  by  his  counsel ;  if  it  be  for  a  crime,  the  defendant 
must  be  personally  present ;  and  if  on  bail,  must  then  be  surrendered 


528  CODE  OF  PROCEDURE. 

into  the  custody  of  the  sheriff,  and  remain  in  custody  until  discharged 
by  due  course  of  law.  But  the  court  may  at  their  discretion,  when 
sex,  age,  or  state  of  health  require  it,  permit  the  defendant  to  remain 
in  the  custody  of  his  bail  during  the  recess  of  the  court,  if  the  cause 
cannot  be  finished  in  one  sitting,  or  while  the  jury  are  out,  if  any  great 
delay  should  take  place  in  rendering  the  verdict. 


SECTION  II. 


Of  challenge. 

Art.  321.  A  challenge  is  an  objection  made  to  the  jurors  who  are 
returned  to  try  the  cause,  and  is  of  two  kinds. 

1.  To  the  panel. 

2.  To  any  individual  juror. 

Art  322.  The  panel  is  the  list  of  jurors,  either  for  the  grand  or  trial 
jury,  made  by  the  officers  authorized  for  that  purpose,  when  the  names 
are  drawn  according  to  law. 

Art  323.  A  copy  of  the  panel  of  the  trial  jury  must  be  delivered  by 
the  sheriff  to  every  defendant,  if  in  custody,  or  to  his  bail,  if  he  be  de- 
livered to  bail,  at  least  three  whole  days  before  the  day  of  trial,  for  the 
purpose  of  enabling  him  to  make  his  challenge. 

Art.  324.  A  challenge  to  the  panel  is  an  objection  made  to  all  trial 
jurors  who  are  summoned  ;  it  can  only  be  grounded  on  some  material 
departure  from  the  forms  prescribed  by  law  for  drawing  and  empan- 
elling juries.  But  it  is  not  a  good  cause  of  challenge  to  the  panel,  that 
one  or  more  persons  not  having  the  legal  qualifications,  have  been  put 
on  the  jury  list. 

Art.  325.  A  challenge  to  the  panel  must  be  made  in  writing,  stating 
the  cause  of  challenge,  before  any  juror  is  sworn,  and  the  officers, 
whether  judicial  or  ministerial,  as  well  as  any  other  persons,  may  be 
examined  to  prove  or  disprove  the  irregularity  alleged,  if  the  public 
prosecutor  deny  the  fact.  If  he  admit  the  fact,  but  deny  the  irregularity 
complained  of  is  material,  he  may  demur  to  the  challenge. 

Art  326.  Challenges  to  individual  jurors  are  of  two  kinds;  peremp- 
tory and  for  cause. 

Art.  327.  A  peremptory  challenge  is  an  objection  made  to  a  juror 
for  which  no  reason  need  be  given  ;  it  is  enough  for  the  defendant  to 
signify  his  desire  that  any  particular  juror  who  is  about  to  be  sworn, 
shall  not  serve  on  the  jury,  and  he  shall  be  set  aside;  but  this  right  can 
be  exercised  only  with  respect  to  nine  jurors. 

Art.  328.  Where  there  are  several  defendants,  each  one  is  entitled 
to  his  challenge,  both  peremptory  and  for  cause;  but  if  they  do  not  agree 
to  let  one  challenge  for  the  whole,  they  must  be  separately  tried. 

Art.  329.  A  challenge  for  cause  is  an  objection  made  to  a  particular 
juror  on  the  allegation  of  some  circumstance  that  renders  him  either 
incapable  to  serve  as  a  juror  in  any  case,  or  unfit  to  serve  as  such  in 
the  one  about  to  be  tried.  Of  the  first  kind  are: 

1.  Conviction  of  any  offence  which  by  the  Code  of  Crimes  and  Pun- 
ishments incurs  a  forfeiture  of  the  i  jht  of  serving  as  a  juror. 

2.  A  want  of  qualifications  designated  by  law  as  necessary  for  a 
juryman. 


CODE  OF  PROCEDURE.  529 

3.  Insanity,  or  such  defect  in  the  organs  of  hearing,  seeing  or 
speaking,  or  other  bodily  or  mental  defect  or  disease  as  renders  him 
incapable  of  performing  the  duties  of  a  juror. 

All  these  are  called  principal  causes  of  challenge.  When  a  particu- 
lar exemption  from  service  on  juries  is  granted  by  law,  it  is  not  a 
cause  of  challenge  to  such  person,  but  a  right  of  which  he  may  avail 
himself  or  not. 

Art.  330.  The  causes  of  challenge  of  the  second  kind  are  either  in 
chief,  by  the  allegation  of  a  fact,  which  if  proved  is  a  disqualification 
by  law,  or  to  the  favour,  by  the  allegation  of  some  circumstance  which 
is  supposed  to  evince  the  want  of  that  perfect  impartiality  necessary 
in  a  juror.  The  causes  of  challenge  in  chief  are  : 

1.  Relationship  within  the  ninth  degree  to  the  person  alleged  to  be 
injured  or  attempted  to  be  injured  by  the  offence  charged,  or  to  the 
person  on  whose  complaint  the  prosecution  was  instituted,  or  to  the 
defendant. 

2.  Standing  in  the  relation  of  husband,  master  or  servant,  landlord 
or  tenant,  tutor  or  curator,  sponsor  for  the  child  of  one  of  the  said  par- 
ties, in  his  employment  on  wages,  or  plaintiff  or  defendant  against  him 
in  any  civil  suit,  or  having  complained  against  him,  or  being  accused 
by  him  in  any  criminal  prosecution. 

3.  Having  served  on  the  grand  jury  which  found  the  indictment 
against  the  defendant  on  which  he  is  about  to  be  tried. 

4.  Having  served  on  a  petit  jury  which  has  convicted  or  acquitted 
another  person  charged  with   having  committed  the  same  offence  now 
about  to  be  tried. 

5.  Having  been  one  of  a  jury  which  was  sworn  in  the  same  cause 
against  the  same  defendant,  and  which  jury  either  gave  a  verdict  which 
was  set  aside,  or  was  discharged  after  hearing  evidence  for  any  other 
cause,  except  in  the  case  hereinafter  provided. 

6.  Having  served  as  a  juror  in  a  civil  suit  brought  against  the  defen- 
dant for  the  same  act. 

7.  Having  formed  such  an  opinion  of  the  guilt  or  innocence  of  the 
defendant,  as  in  the  opinion  of  the  juror  himself,  renders  him   not 
an  impartial  judge. 

Art.  331.  If  either  of  the  facts  stated  as  causes  of  challenge  in  the 
two  last  preceding  articles,  be  alleged  and  proved  to  the  satisfaction  of 
the  court,  the  juror  challenged  for  such  cause  shall  not  be  sworn. 

Art.  332.  The  juror  challenged  may  be  sworn,  and  other  evidence 
may  be  produced,  to  show  the  truth  of  the  cause  of  challenge,  and  in 
the  case  of  the  seventh  cause  above  enumerated  for  challenges  in  chief, 
if  the  juror  have  formed  an  opinion  but  does  not  think  it  disqualifies 
him,  this  may  be  made  a  case  of  challenge  to  the  juror  in  the  manner 
provided  by  the  next  article.  But  no  juror  shall  be  obliged  to  answer, 
whether  he  has  been  convicted  or  not  of  a  certain  crime  that  would  dis- 
qualify him. 

Art.  333.  A  juror  must  come  to  the  performance  of  his  high  duty 
with  a  mind  perfectly  unbiassed  ;  therefore,  if  no  challenge  in  chief 
be  made,  or  being  made,  is  not  proved,  the  defendant,  if  he  can  prove 
any  other  circumstance  that  shows  either  prejudice  against  him,  or 
favour  to  his  accuser,  may  make  it  a  cause  of  challenge  to  the  favour. 

Art.  334.  This  challenge,  like  those  in  chief,  is  made  verbally, 
and  if  it  be  to  the  first  juror  who  appears,  it  must  be  tried  by  three 
3  R 


530  CODE  OF  PROCEDURE. 

persons  called  triers,  to  be  named  by  the  court  :  if  one  juror  has  been 
sworn,  he,  together  with  two  persons  named,  are  the  triers  ;  if  two 
are  sworn,  the  court  must  name  another  trier,  and  when  three  jurors 
are  sworn,  they  are  the  triers  of  all  subsequent  challenges  to  the  jurors. 

Art.  335.  The  triers  shall  be  sworn  to  decide  whether  the  juror 
challenged  is  perfectly  unbiassed,  and  free  from  all  prejudice  against 
the  defendant,  and  as  a  majority  of  the  said  triers  decide,  the  juror 
shall  be  sworn  or  the  challenge  allowed. 

Art.  336.  A  juror  against  whom  a  challenge  in  chief  or  the  favour 
has  been  overruled,  may  be  challenged  peremptorily. 

Art.  337.  The  public  prosecutor  may  make  challenges  to  the  panel 
or  for  cause  to  individual  jurors,  for  the  same  causes,  in  which  they 
are  allowed  to  the  defendant.  He  has  also  a  right  of  peremptory  chal- 
lenge to  three  jurors. 

Art.  338.  All  challenges  to  individual  jurors  must  be  made  when 
they  are  called  to  be  sworn,  but  before  they  are  sworn. 


CHAPTER  VIII. 


Of  the.  trial. 

Art.  339.  The  names  of  all  the  jurors  on  the  petit  jury  panel,  shall 
be  called,  and  those  who  do  not  appear  shall  be  fined  not  exceeding 
ten  dollars,  which  fine  on  the  subsequent  appearance  of  the  juror  and 
on  his  offering  a  sufficient  excuse,  to  be  approved  at  the  discretion 
of  the  court,  may  be  remitted. 

Art.  340.  Either  the  public  prosecutor  or  the  defendant  may  re- 
quire, before  proceeding  to  trial,  that  an  attachment  issue  against  the 
jurors  who  have  made  default,  on  which  they  shall  be  arrested  and 
brought  forthwith  into  court. 

Art.  341.  After  waiting  such  time  as  (he  court  shall  deem  reason- 
able for  (he  return  of  the  attachment,  the  clerk  shall  in  open  court  put 
the  names  of  all  the  jurors  on  the  panel,  each  written  on  a  separate 
ballot,  folded  as  near  as  may  be  of  the  same  size  and  shape,  into  a 
ballot  box,  from  which  they  shall  be  drawn  successively,  and,  if  not 
challenged,  sworn  in  the  order  in  which  they  are  drawn,  until  the 
number  of  twelve  shall  be  complete. 

Art.  342.  The  court  has  power  to  excuse  any  juror  from  attendance, 
for  reasonable  cause,  and  whenever  any  number  exceeding  five  have 
been  so  excused,  or  when  a  sufficient  number  cannot  be  brought  up  on 
attachment  for  the  trial  of  a  cause,  the  court  may  direct  the  names  of 
a  sufficient  number  of  other  jurors  to  be  drawn  from  the  box,  and  or- 
der them  to  be  summoned  to  attend  immediately,  and  their  names  shall 
be  put  into  the  court  box  and  drawn  for  the  trials  as  is  before  directed. 
Art.  343.  Any  less  number  than  twelve  that  may  be  agreed  on 
between  the  public  prosecutor  and  the  defendant,  may  try  a  misde- 
meanor, but  a  crime  shall  not  be  tried  by  less  than  a  full  jury,  drawn 
by  lot  in  the  manner  above  directed. 

Art.  344.  The  trial  shall  proceed  in  the  following  order  : 


CODE  OF  PROCEDURE.  531 

1.  The  clerk  shall  read  the  indictment  or  information  to  the  jury, 
and  inform  them  what  answer  has  been  recorded. 

2.  The  public  prosecutor  shall  open  the  case   by  reading  from  the 
code  the  description  of  the  offence,  and  stating  summarily,  by  what 
evidence  he  expects  to  prove  the  guilt  of  the  defendant. 

3.  The  public  prosecutor  shall  offer  the  evidence  in  support  of  the 
prosecution. 

4.  The  defendant,  or  his  counsel,  shall  open  his  defence,  state  in 
what  facts  or  law  he  intends  to  rely,  and  whether  he  thinks  the  evi- 
dence for  the  prosecution  insufficient  or  inapplicable. 

5.  The  defendant  shall  produce  his  testimony. 

6.  The  public  prosecutor  may  then   introduce  testimony  to  rebut 
any  that  has  been  introduced   by  the  defendant,  or  if  he  do   not,  he 
may  offer  his  concluding  argument. 

7.  The  defendant  closes  the  argument ;   previous  to  which  he  may 
introduce  testimony  to  repel  that  last  offered  by  the  prosecutor. 

Art.  346.  The  public  prosecutor  may  at  any  time  during  the  term 
request  the  court  to  give  a  direction  to  find  a  verdict  for  the  defendant, 
if  he  finds  that  the  prosecution  cannot  be  supported,  and  if  the  court 
give  such  direction,  the  jury  are  bound  to  acquit  the  defendant,  and  if 
they, refuse,  a  new  trial  shall  be  immediately  granted,  or,  at  the  option 
of  the  defendant,  entry  made  that  the  public  prosecutor  will  no  longer 
prosecute  for  the  offence. 

Art.  347.  The  court  cannot,  for  any  defect  or  supposed  deficiency 
of  testimony,  prevent  the  jury  from  giving  a  verdict. 

Art.  348.  If  a  juror  on  any  trial  for  a  crime  should  be  taken  with 
some  malady,  that  prevents  his  performing  his  duty,  the  court  may 
order  him  to  be  discharged  ;  and  in  that  case  a  new  jury  must  be 
sworn,  and  the  trial  must  begin  again  :  the  same  jurors  may,  if  drawn, 
serve  on  the  new  jury,  but  may  be  challenged  although  they  were  not 
before. 

Art.  349.  In  misdemeanor,  a  new  juror  may  be  added,  or  the  trial 
may  proceed  with  those  who  remain  by  the  consent  of  the  prosecutor 
and  the  defendant. 

Art.  350.  The  court  has  a  discretionary  power  of  adjourning  the 
trial  from  day  to  day,  if  from  the  length  of  the  proceedings  it  cannot 
be  conveniently  finished  in  one  or  more  sittings,  or  if  an}'  unforeseen 
circumstance  should  make  it  necessary  for  the  attainment  of  justice 
to  do  so. 

Art.  351.  In  the  case  provided  for  by  the  last  preceding  article, 
the  jury  must,  unless  by  consent,  be  kept  together  during  the  recess 
of  the  court,  at  the  public  expense,  under  the  charge  of  an  officer, 
who  shall  be  sworn  not  to  permit  any  one  to  speak  with  them  touch- 
ing any  matter  relative  to  that  trial.  This  consent  cannot  be  given  in 
cases  of  crimes  punishable  with  imprisonment  for  life. 

Art.  352.  The  court  may  also  discharge  the  jury  :  1st.  Whenever  it 
appears  to  them  by  the  examination  of  a  physician  that  a  witness  on 
either  side,  who  has  not  been  examined  or  discharged,  and  who  is  prov- 
ed to  be  a  material  one,  has  been  taken  sick  since  the  commencement  of 
the  trial,  and  cannot  be  examined  in  court  without  danger  to  his  life, 
and  there  is  no  probability  of  his  speedy  recovery.  2d.  Where  the  de- 
fendant himself  is  so  taken  sick.  3d.  Where  a  material  witness  on  the 
part  of  the  prosecution  has  been  concealed,  or  induced  to  abscond  or 


532  CODE  OF  PROCEDURE. 

conceal  himself  by  the  defendant,  or  any  one  employed  by  him  ;  or 
where  such  witness  for  the  defendant  is  concealed,  or  has  been  induced 
to  conceal  himself,  or  abscond,  by  the  public  prosecutor,  the  complain- 
ant, or  the  person  supposed  to  be  injured  by  the  offence,  or  by  any  one 
employed  by  either  of  them. 

Art.  353.  The  judge  shall  decide  all  questions  of  law  arising  in  the 
course  of  the  trial,  and  shall  keep  notes  of  all  the  testimony  offered  on 
either  side. 

Art.  354.  When  the  pleadings  are  finished,  the  judge  shall  give  his 
charge  to  the  jury,  in  which  he  shall  state  to  them  all  such  matters  of 
law  as  he  shall  think  necessary  for  their  information  in  giving  their 
verdict.  But  he  shall  not  recapitulate  the  testimony  unless  requested 
so  to  do  by  one  or  more  of  the  jurors,  if  there  should  be  any  difference 
of  opinion  between  them  as  to  any  particular  part  of  the  testimony, 
and  then  he  shall  confine  his  information  to  the  part  on  which  informa- 
tion is  required,  it  being  the  intent  of  this  article  that  the  jury  shall 
decide  all  questions  of  fact,  in  which  is  included  the  credit  due  to  the 
witnesses  who  have  been  sworn,  unbiassed  by  the  opinion  of  the  court. 

Art.  355.  After  hearing  the  charge,  the  jury  may  either  decide  in 
court  or  retire  for  consultation.  If  they  cannot  immediately  agree,  an 
officer  must  be  sworn  in  the  manner  set  forth  in  the  subsequent  chapter, 
to  take  charge  of  them  ;  and  they  must  then  retire  to  a  chamber  pre- 
pared for  them. 

Art.  356.  Before  leaving  the  court,  the  jury  must  appoint  one  of 
their  number  to  be  foreman  ;  whose  duty  it  is  to  preside  in  their  de- 
bates, to  deliver  the  verdict,  or  ask  any  information  from  the  court  that 
may  be  required  by  the  jury.  If  a  majority  do  not  agree  in  the  ap- 
pointment of  a  foreman,  he  shall  be  named  by  the  court. 

Art.  357.  Whenever  in  the  opinion  of  the  court  it  may  be  deemed 
proper  and  convenient  that  the  jury  should  have  a  view  of  the  place  in 
which  the  offence  is  said  to  have  been  committed  or  of  any  other  place 
in  which  any  other  transaction  material  to  the  inquiry  on  the  trial  took 
place,  an  order  shall  be  made  to  that  effect,  and  the  jury  shall  be  con- 
ducted in  a  body  under  the  care  of  the  sheriff,  to  the  place,  which  shall 
be  shown  to  them  by  a  person  appointed  by  the  court,  and  it  shall  be 
the  duty  of  the  sheriff  to  suffer  no  other  person  to  speak  to  the  jury, 
and  they  shall  when  the  view  is  finished,  be  immediately  conducted  into 
court. 


CHAPTER   IX. 


Of  the  conduct  of  the  jury  after  receiving  the  charge. 

Art.  358.  When  the  jury  have  retired,  they  must  proceed  to  deliber- 
ate of  their  verdict.  If  there  be  any  disagreement  between  them  as  to 
any  part  of  the  testimony,  or  if  any  juror  wish  to  be  informed  of  any 
point  of  law  arising  in  the  cause,  the  officer  having  charge  of  them 
shall  bring  them  into  court ;  where  the  information  asked  shall  be  given 
in  the  presence  of,  or  after  notice  to,  the  defendant  or  his  counsel,  and 
to  the  public  prosecutor. 


CODE  OF  PROCEDURE.  533 

Art.  359.  After  having  received  the  information  required,  the  jury 
may  again  return,  and  shall  not  be  discharged  until  they  are  all  agreed 
on  their  verdict,  unless  it  shall  appear  to  the  court  that  there  is  no  pro- 
bability that  they  will  agree,  and  that  the  health  of  one  or  more  of  the 
jurors  will  be  endangered  by  the  confinement. 

Art.  360.  The  jury  to  be  kept  during  the  time  of  their  retirement 
without  any  other  sustenance  than  bread  and  water,  except  during  the 
adjournments  from  day  to  day,  mentioned  in  the  last  chapter  ;  and  they 
are  to  speak  to  no  one,  except  in  case  of  such  adjournment,  but  the 
officer  who  attends  them,  and  with  him  they  are  to  have  no  other  com- 
munication than  necessity  requires. 

Art.  361.  If  one  of  the  jurors,  after  they  have  retired,  should  be 
taken  so  sick  as  to  prevent  the  continuance  of  his  duty,  the  jury  must 
be  discharged,  unless  in  cases  of  misdemeanor  it  is  agreed  between  the 
public  prosecutor  and  the  defendant,  that  the  remaining  jurors  shall 
decide  the  cause.  This  agreement  cannot  be  made  in  case  of  crime. 

Art.  362.  In  all  cases  where  power  is  given  to  the  court  to  discharge 
a  jury,  it  operates  no  discharge  of  the  defendant,  but  a  new  jury  must 
be  sworn  to  try  the  cause. 

Art.  363.  The  court  may  adjourn  while  the  jury  are  deliberating  on 
their  verdict,  and  if  the  jury  should  agree  before  the  next  meeting  of 
the  court,  if  the  cause  in  which  they  are  empanelled  be  a  misdemeanor, 
they  may  write  and  sign  their  verdict,  which  must  be  left  with  the  fore- 
man, sealed,  and  the  jurors  are  then  at  liberty  to  disperse,  but  must  be 
all  present  in  court  at  its  opening  ;  when  the  foreman  must  deliver  it 
to  the  court,  which  shall  be  openly  read,  and  if  agreed  to  by  all  the 
jurors,  shall  be  recorded. 

Art.  364.  A  sealed  verdict  cannot  be  given  in  cases  of  crime  even 
by  consent. 

Art.  '365.  The  jury  shall  take  with  them  all  papers  that  have  been 
received  as  evidence  in  the  cause,  or  copies  of  such  parts  of  public  re- 
cords, books  or  other  documents  as  cannot  without  inconvenience  be 
taken  from  the  persons  having  charge  of  them.  They  may  also  take 
with  them  notes  of  the  testimony  which  one  or  more  of  them  have 
taken,  but  none  made  by  any  other  person. 

Art.  366.  If  a  juror  have  any  personal  knowledge  respecting  any 
fact  in  controversy  in  the  cause,  it  is  his  duty  to  make  the  declaration 
in  open  court  during  the  trial.  If  during  the  retirement  any  juror  de- 
clare any  fact  that  could  be  evidence  in  the  cause,  to  his  fellows,  as  of 
his  own  knowledge,  it  is  the  duty  of  the  other  members  to  return  with 
him  into  court ;  and  in  both  cases,  the  juror  making  the  statement 
must  be  sworn  as  a  witness,  and  examined  in  the  presence  of  the  parties. 

Art.  367.  A  mere  declaration  of  the  credit  or  want  of  credit  any 
juror  gives  to  a  witness,  does  not  come  within  the  last  preceding  article. 

Art.  368.  The  court  may  punish  by  fine  not  exceeding  twenty  dol- 
lars, any  such  breach  of  the  duties  prescribed  to  grand  or  petit  jurors 
as  are  imposed  upon  them  by  law,  other  than  such  as  are  specially  cre- 
ated offences,  which  must  be  prosecuted  by  information. 

Art.  369.  No  juror  shall  be  punished  for  any  opinion  or  vote  he  may 
have  given  in  deliberating  on  or  in  giving  his  verdict. 


534  CODE  OF  PROCEDURE. 


CHAPTER  X. 


Of  the.  verdict. 

Art.  370.  When  the  jury  have  agreed  in  their  verdict,  they  shall  be 
conducted  by  the  officer  having  charge  of  them  into  court  ;  when 
their  names  shall  be  called,  and  if  all  do  not  appear,  the  rest  shall  be 
discharged  without  giving  a  verdict. 

Art.  371.  If  the  whole  jury  appear,  the  defendant  shall  be  called  if 
he  be  out  on  bail,  or  brought  into  court  if  he  be  in  custody. 

Art.  372.  In  case  of  misdemeanor,  the  defendant  may  answer  when 
called  by  his  attorney  or  counsel,  both  at  the  trial  and  when  the  verdict  is 
brought  in,  and  the  bail  is  answerable  in  the  amount  of  the  recognizance 
if  the  defendant  do  not  surrender  himself  to  receive  judgment.  When 
imprisonment  forms  a  part  of  the  judgment,  it  may  at  any  time  after- 
wards be  inflicted  if  the  defendant  be  found,  notwithstanding  the  pay- 
ment of  the  penalty  of  the  recognizance. 

Art.  373.  When  the  jury  have  returned  into  court,  they  shall  be 
asked  whether  they  have  agreed  on  their  verdict,  and  if  the  foreman 
answer  in  the  affirmative,  they  shall,  on  being  required,  give  the  same 
verbally,  or  if  it  be  written,  the  foreman  shall  read  the  same. 

Art.  374.  The  form  must  be  either  "  guilty"  or  "  not  guilty,"  which 
is  a  general  verdict  and  imports  an  acquittal  or  conviction  on  all  the  facts 
charged  ;  or  in  cases  where  the  jurors  are  in  doubt  whether  the  facts 
that  have  been  proved,  amount  to  any  offence  on  which  they  can  decide 
under  the  charge  in  the  act  of  accusation,  they  may  find  a  special 
verdict. 

Art.  375.  A  special  verdict  is  a  statement  of  the  facts  which  have 
been  proved  to  the  satisfaction  of  the  jury,  with  a  conclusion  that,  being 
uncertain  whether  such  facts  are  sufficient  to  establish  in  law  the  guilt 
of  the  defendant,  they  submit  that  point  to  the  decision  of  the  court. 

Art.  376.  A  special  verdict  shall  be  argued  at  such  time  and  in  such 
manner  as  shall  be  directed  by  the  rules  of  court,  but  the  counsel  for 
the  defendant  shall  conclude  the  argument. 

Art.  377.  If,  after  argument,  the  court  shall  be  of  opinion  that  the 
facts  found  prove  the  defendant  is  guilty  of  the  offence  charged  in  the 
act  of  accusation,  or  of  any  other  of  which  he  could  be  convicted  under 
that  act  of  accusation,  according  to  the  rules  hereinafter  established, 
they  shall  proceed  to  pronounce  judgment  accordingly. 

Art.  378.  If  the  facts  found  show,  that  the  act  does  not  amount  to 
any  such  offence  as  the  defendant  could  have  been  convicted  on,  under 
that  act  of  accusation,  they  shall  pronounce  a  judgment  of  acquittal. 

Art.  379.  In  either  of  the  cases  mentioned  in  the  two  last  preced- 
ing articles,  the  judgment  shall  be  a  bar  to  any  future  prosecution  for 
the  same  offence. 

Art.  380.  If  the  jury  do  not  pronounce  affirmatively  or  negatively 
on  facts  necessary  to  establish  the  guilt  or  the  innocence  of  the  defend- 
ant, the  court  shall  direct  a  new  trial. 

Art.  381.  On  an  act  of  accusation  for  any  offence  coming  within  the 


CODE  OF  PROCEDURE.  535 

i 

general  description  of  homicide,  the  jury  may  find  the  defendant 
guilty  of  homicide  in  any  degree  lower  than  that  charged  in  the  indict- 
ment ;  the  degrees  are  measured  by  the  order  in  which  the  offences 
are  described  in  the  code,  those  first  described  being  lowest  in  degree. 
Art.  £82.  On  acts  of  accusation  for  battery,  aggravated  by  any  of 
the  circumstances  which  enhance  the  guilt  of  the  offender,  the  jury 
may  find  him  guilty  only  of  simple  assault  and  battery  ;  if  several 
circumstances  of  aggravation  are  charged  in  the  act  of  accusation,  they 
may  find  him  guilty  of  one  or  more  ;  but  no  one  can  be  found  guilty 
of  an  act  of  aggravation  not  charged. 

Art.  383.  If  the  charge  made  by  the  act  of  accusation  be  of  theft, 
aggravated  by  any  of  the  circumstances  which  would  enhance  the 
guilt  of  the  offence,  whether  such  circumstances  as  give  it  another 
denomination  (such  as  robbery  or  stealing  from  the  person)  or  not, 
the  defendant  may  be  found  guilty  of  simple  theft,  or  of  theft  aggra- 
vated by  any  one  or  more  of  the  circumstances  charged. 

Art.  384.  If  the  charge  be  simple  theft,  a  verdict  may  be  given  for 
any  fraudulent  appropriation  of  property  that  by  law  is  created  an 
offence. 

Art.  385.  In  the  cases  coming  within  the  purview  of  the  three  last 
preceding  articles,  the  acquittal  or  conviction  is  a  bar  to  any  other 
prosecution  for  the  same  act,  although  the  subsequent  accusation  should 
add  a  charge  of  other  intent  or  circumstance. 

Art.  386.  If  a  former  conviction  be  changed  either  in  the  act  of 
accusation  or  by  notice,  it  may  negative  that  fact,  or  affirm  it  specially, 
or  by  a  general  verdict. 

Art.  387.  In  every  other  case  not  herein  specially  provided  for, 
the  defendant  may  be  found  guilty  of  any  offence  the  commission  of 
which  is  necessarily  included  in  that  of  which  he  is  accused,  in  the  act 
of  accusation. 

Art.  388.  If  the  defence  in  any  accusation  of  crime  be  insanity  in 
the  defendant,  and  the  jury  acquit  him  on  that  ground,  they  must  add 
that  finding  to  their  verdict,  and  thereupon  the  court  is  authorized  to 
make  such  order  for  the  confinement  of  the  defendant  in  a  hospital 
or  otherwise,  or  for  the  delivery  of  him  to  his  relations,  as  humanity 
and  public  safety  may  require. 

Art.  389.  If  on  the  trial  for  any  offence  it  should  appear  by  the 
testimony  that  an  offence  of  a  higher  nature  has  been  committed  than 
the  one  charged  as  arising  from  the  same  circumstances,  the  court 
must  direct  the  jury  to  be  discharged,  and  a  new  indictment  sent  to 
the  grand  jury  for  the  higher  offence. 

Art.  390.  They  may  also  direct  the  jury  to  be  discharged  where 
there  is  any  such  defect  in  the  indictment  or  other  proceedings,  as 
will  prevent  a  trial  on  the  merits,  and  may,  in  such  case,  order  the 
defendant  to  be  committed  for  any  offence  that  the  testimony  may 
have  shown  he  had  committed. 

Art.  391.  If  a  verdict  of  acquittal  shall  be  given  on  any  act  of 
accusation,  so  defective  that  no  judgment  could  have  been  given 
against  the  defendant  if  he  had  been  convicted,  he  shall  not  be  dis- 
charged, but  may  again  be  indicted  and  brought  to  trial  for  the  same 
offence. 

Art.  392.  When  the  jury  shall  find  the  defendant  not  guilty  on  an 


536  CODE  OF  PROCEDURE. 

accusation,  for  any  offence  founded  on  a  written  instrument,  under 
the  chapter  of  the  Penal  Code  entitled  "  Of  offences  affecting  the  cre- 
dit of  written  contracts,"  the  court  shall  inquire,  and  the  jury  must 
declare  whether  they  find  such  instrument  to  be  false  or  forged,  or 
made  contrary  to  any  of  the  provisions  of  that  chapter  ;  and»if  they 
find  that  the  instrument  is  not  false  nor  forged,  nor  made  contrary  to 
any  of  those  provisions,  the  instrument  shall  be  delivered  to  the  per- 
son from  whose  possession  it  was  taken. 

Art.  393.  If  on  such  accusation  the  defendant  is  convicted,  or  if  the 
jury,  under  the  direction  of  the  last  preceding  article,  have  found  that 
the  instrument  was  false,  forged,  or  made  in  contravention  of  any 
provision  in  the  chapter  above  referred  to,  the  instrument  shall  re- 
main attached  to  the  indictment,  until  the  court  shall  make  other 
order,  which  they  may  do  in  case  any  civil  suit  be  commenced  which 
may  render  the  production  thereof  necessary  to  any  party  in  such 
suit  ;  but  on  such  terms  and  on  such  security,  as  the  court  may 
deem  proper  to  prevent  fraud. 

Art.  394.  When  there  is  a  verdict  of  acquittal,  the  court  cannot 
require  the  jury  to  reconsider  it ;  but  when  there  is  a  verdict  of  con- 
viction, in  which  it  appears  to  the  court  that  the  jury  have  mistaken 
the  law,  they  may  explain  the  reason  why  they  think  so,  and  direct 
the  jury  to  go  out  and  reconsider  the  verdict ;  but  if  after  such  recon- 
sideration they  return  with  the  same  verdict,  it  must  be  entered. 

Art.  395.  In  like  manner,  if  the  jury  bring  in  a  verdict  that  is  nei- 
ther an  acquittal  nor  a  conviction,  nor  a  special  verdict,  the  court  may 
direct  the  jury  to  reconsider  the  verdict,  and  it  shall  not  be  recorded 
until  it  is  brought  in  in  some  form  from  which  it  can  be  clearly  under- 
stood what  is  the  intent  of  the  jury,  whether  to  acquit,  to  convict,  or 
to  state  facts  and  leave  the  judgment  to  the  court. 

Art.  396.  If  the  jury  persevere  in  finding  an  informal  verdict,  from 
which,  however,  it  can  be  clearly  understood  that  their  intent  is  to 
acquit,  it  shall  be  entered  in  the  terms  in  which  they  found  it,  and  the 
court  shall  give  judgment  of  acquittal  ;  but  no  judgment  shall  be  given 
against  a  defendant  unless  the  jury  expressly  find  him  guilty,  or  judg- 
ment be  given  against  him  on  a  special  verdict. 

Art.  397.  If  the  court  or  either  of  the  parties  think  that  all  the 
jurors  have  not  agreed  to  the  verdict  that  may  have  been  given  by  the 
foreman,  they  shall  severally  be  asked  whether  they  agree,  and  if  any 
one  answers  in  the  negative,  the  whole  jury  shall  be  sent  out  for  fur- 
ther deliberation. 

Art.  398.  When  the  verdict  is  given,  and  is  such  as  the  court 
must  receive,  the  clerk  records  it  on  the  minutes  of  the  court,  which 
he  must  do  immediately,  without  attending  to  any  other  business  ; 
and  when  it  is  recorded  in  full,  he  must  read  it  to  the  jury,  and  de- 
mand whether  they  all  agree  :  if  any  juror  disagree,  the  record  must 
be  cancelled,  and  the  jury  again  sent  out ;  if  no  objection  be  made,  the 
jury  must  be  discharged. 


CODE  OF  PROCEDURE.  537 


CHAPTER  XI. 


Of  the  proceedings  after  verdict  to  judgment. 

Art.  399.  If  the  defendant  be  acquitted,  and  is  not  detained  for  any 
other  legal  cause,  he  is  entitled  to  his  discharge  as  soon  as  the  verdict 
is  recorded,  except  in  the  cases  hereinbefore  provided,  where  the 
court  may  order  a  detention  and  a  new  act  of  accusation  ;  unless  the 
public  prosecutor  shall  declare  that  he  intends  to  move  for  a  new  trial 
for  some  of  the  legal  causes  hereinafter  set  forth,  or  shall  request  that  he 
may  be  detained  on  an  allegation  that  he  has  other  charges  to  exhibit 
against  him  :  but  such  motion  must  be  made,  or  such  charges  must  be 
exhibited  in  a  legal  form,  within  twelve  hours  after  the  acquittal,  or 
the  defendant  must  be  discharged,  if  in  custody,  and  his  bail  is  exon- 
erated if  he  be  delivered  to  bail. 

Art.  400.  No  prisoner  acquitted  by  a  verdict  or  discharged  for 
want  of  prosecution,  shall  be  detained  for  any  costs  or  fees  of  office, 
or  any  debts  incurred  for  his  subsistence  while  in  custody. 

Art.  401.  If  the  defendant  be  convicted,  he  must  be  remanded,  if 
in  custody,  to  the  prison,  until  judgment  shall  be  pronounced. 


CHAPTER  XII. 

i 

Of  new  trials  and  motions  in  arrest  of  judgment. 

SECTION  I. 
Of  new  trials. 

Art.  402.  A  new  trial  is  a  rehearing  of  the  cause  before  another 
jury,  after  a  verdict  has  been  given  on  the  same  act  of  accusation. 

Art.  403.  The  allowance  of  a  motion  for  a  new  trial  places  the 
parties  precisely  in  the  state  in  which  they  were  immediately  before 
the  first  trial.  All  the  testimony  must  be  heard  again  ;  and  the  first 
verdict  cannot  be  made  use  of  either  as  evidence  or  in  argument. 

Art.  404.  Courts  have  power  to  grant  new  trials  in  the  cases  enu- 
merated in  this  section. 

Art.  405.  After  acquittal,  either  by  general  verdict  or  when  a  spe- 
cial verdict  is  found,  new  trials  may  be  granted  on  the  motion  of  the 
public  prosecutor  in  the  following  cases,  and  no  other :  . 

1.  When  the  defendant,  or  any  one   for  his  benefit,  has  bribed  a 
juror,  or  suborned  or  bribed  a  witness,  or  has  given  any  forged  paper 
in  evidence,  on  the  first  trial,  which   might,  in  the  opinion  of  the 
court,  have  changed  the  verdict. 
3  S 


538  CODE  OF  PROCEDURE. 

2.  When  the  defendant,  or  any  one  for  his  benefit,  has  either  by 
force,  threats  or  persuasion,  prevented  any  material  witness  from  ap- 
pearing against  him  on  the  first  trial  ;   or  has  destroyed  or  secreted 
any  written  document,  material  to  the  prosecution,  and  which  might 
otherwise  have  been  produced. 

3.  When  evidence  in  favour  of  the  accused  shall  have  been  given 
to  the  jury  out  of  court,  without  the  order  of  the  court  and  the  con- 
sent of  the  public  prosecutor. 

4.  When  by  the  procurement  of  the  defendant,  or  of  any  one  for  his 
benefit,  the  jury  which  tried  the  cause  was  illegally  impannelled,  but 
no  illegality  in  the  panel  unless  caused  by  such  procurement,  shall  be 
a  good  cause  for  a  new  trial  after  an  acquittal. 

Art.  406.  No  irregularity  committed  by  the  jury  shall  be  a  good 
cause  for  setting  aside  a  verdict  of  acquittal. 

Art.  407.  New  trials,  after  a  verdict  of  conviction,  may  be  granted 
on  the  application  of  the  defendant,  in  the  following  cases  and  no 
other  : 

1.  When  the  defendant,  being  in  custody,  was  not  brought  into 
court  at  the  trial  or  at  the  lime  the  verdict  was  delivered. 

2.  When  he  has  been  tried  without  being  called  on   to  make  his 
exceptions  to  the  act  of  accusation  and  other  proceedings  in  the  man- 
ner directed  in  the  fifth  chapter  of  this  title. 

3.  When  any  one  has  bribed  a  juror  to  give  a  verdict  against  the 
defendant  ;   or  has  forged  an  instrument  in  writing  which  has  been 
produced  in  evidence  against  him  ;   or  when  any  of  his  material  wit- 
nesses have  by  force,  threats  or  persuasion,  been  prevented  from  at- 
tending on  the  trial  ;   or  when  a  written  instrument,  material  to  his 
defence,  has  been  intentionally  destroyed  or  secreted  for  the  purpose 
of  procuring  his  conviction — provided  in  this  last  case,  that  the  instru- 
ment was  legal  testimony,  and  that  the  defendant  had  reason  to  expect 
its  production  on  the  trial. 

4.  When  material   evidence  has   been   discovered   since   the   trial 
which  may  be  procured  on  a  new  trial,  which  could  not  by  due  dili- 
gence have  been  discovered  before  ;    and  which,  in  the  opinion  of  the 
court,  might  have  changed  the  verdict  had  it  been  produced. 

6.  When  the  jury  has  received  any  other  evidence,  out  of  court, 
than  that  resulting  from  a  view  as  hereinbefore  directed,  without  leave 
of  the  court  and  the  consent  of  the  defendant ;  when  they  have  deci- 
ded their  verdict  by  chance  ;  or  have  separated  after  they  had  retired 
to  consult  of  their  verdict,  and  before  they  have  given  it  in,  except  in 
cases  of  sealed  verdicts,  as  is  hereinbefore  provided. 

6.  When  the  verdict  is,  in  the  opinion  of  the  court,  contrary  to 
law  or  evidence  :   but  no  more  than  two  new  trials  shall  be  given  for 
this  cause  alone. 

7.  When   the  defendant   has  been   tried  without  the  assistance  of 
counsel,  when  he  has  prayed  that  counsel  should  be  assigned  him. 

8.  When  the  court  has  misdirected  the  jury  on  any  point  of  law,  or 
given  them  any  direction  how  to  find  any  point  of  fact,  to  the  preju- 
dice of  the  defendant. 

Art.  408.  No  new  trial  shall  be  granted  on  the  allegation  of  the 
perjury  of  a  witness,  or  the  production  of  forged  papers,  unless  the 
fact  of  perjury  or  forgery  appear  by  the  oath  of  two  credible  witnesses, 
or  of  one  witness  and  strong  circumstantial  proof ;  and  unless  it  shall 


CODE  OF  PROCEDURE.  539 

appear,  that  the  party  making  the  application  was  surprized  by  the 
production  of  such  false  evidence,  and  could  not,  by  reasonable  dili- 
gence, have  been  apprized  of  the  intention  to  produce  it  ;  or  that  the 
evidence  to  prove  the  forgery  or  perjury  came  to  his  knowledge  after 
the  trial,  and  could  not,  by  reasonable  diligence,  have  been  discovered 
before. 

Art.  409.  In  all  cases  of  applications  for  a  new  trial,  such  of  the 
facts  on  which  it  is  founded,  as  may  reasonably  be  supposed  to  be 
within  the  knowledge  of  the  party  making  it,  must  be  declared  by  his 
affidavit,  supported  by  such  other  testimony,  where  the  case  admits  of 
it,  as  may  be  satisfactory  to  the  court. 

Art.  410.  Applications  for  a  new  trial,  on  the  part  of  the  defend- 
ant, must  be  made  within  three  days  after  the  entry  of  the  verdict  on 
the  part  of  the  prosecution  ;  it  must  be  made  in  the  manner  and 
within  the  time  specified  by  the  first  article  of  the  eleventh  chapter  of 
this  title.  All  applications  for  new  trials  must  be  in  writing. 


SECTION  II. 

Of  motions  in  arrest  of  judgment. 

Art.  411.  A  motion  in  arrest  of  judgment  is  a  request  made  to  the 
court,  after  conviction,  praying  that  no  judgment  be  rendered  on  the 
verdict.  It  mu  >i  be  founded  on  a  defect  apparent  on  the  act  of  accu- 
sation. 

Art.  412.  No  judgment  can  be  arrested  for  a  defect  of  form. 

Art.  413.  The  only  matter  of  substance  for  which  a  judgment  can 
be  arrested  is  this,  that  the  act  of  accusation  contains  no  charge  of  any 
fact,  or  of  any  fact  coupled  with  an  intent,  that  is  by  law  declared  to 
be  an  offence.  The  court  may,  on  its  own  view  of  this  defect,  arrest 
the  judgment  without  motion. 

Art.  414.  The  effect  of  allowing  a  motion  in  arrest  of  judgment  is 
to  place  the  defendant  in  the  same  state,  with  respect  to  the  prosecu- 
tion, in  which  he  was  before  the  indictment  was  found,  or  the  infor- 
mation was  filed.  If  from  the  testimony,  on  the  trial,  there  is  sufficient 
reason  to  believe  him  guilty  of  the  offence  for  which  he  was  first 
arrested,  a  new  indictment  shall  be  sent  to  the  grand  jury  ;  or  a  new 
information  shall  be  filed,  as  the  case  may  require  ;  and  the  defend- 
ant shall  remain  in  custody,  or  be  delivered  to  bail.  If  the  evidence 
show  him  guilty  of  another  offence,  he  shall  be  committed  or  bailed 
on  such  charge  :  and  in  neither  case  shall  the  verdict  bar  a  new  pro- 
secution. If  no  evidence  appear  sufficient  to  charge  him  with  any 
offence,  he  shall  be  discharged,  and  the  arrest  of  judgment  shall  oper- 
ate as  an  acquittal  of  the  charge  on  which  he  was  arrested. 

Art.  415.  Motions  in  arrest  of  judgment  must  be  made  within 
three  days  after  the  entry  of  the  verdict. 


540  CODK  OF  PROCEDURE. 


CHAPTER  XIII. 

Of  the  judgment  and  its  incidents. 

SECTION  I. 

Of  the  judgment. 

Art.  416.  If  within  three  days  after  a  verdict  has  been  entered  no 
motion  in  arrest  of  judgment,  or  for  a  new  trial,  has  been  made,  or 
having  been  made  has  been  over-ruled,  the  court  shall  proceed  to  ren- 
der judgment. 

Art.  417.  For  this  purpose  the  defendant  shall  be  brought  into 
court,  if  in  custody  ;  or  surrendered,  if  delivered  on  bail. 

Art.  418.  In  cases  of  misdemeanor  where  the  defendant  has  been 
bailed,  and  has  appeared  by  attorney  or  in  person  at  the  trial,  and 
when  the  verdict  was  delivered  ;  but  does  not  appear  to  receive 
judgment,  sentence  may  be  pronounced  in  his  absence.  If  the  sen- 
tence be  fine  only,  it  shall  be  recovered  from  the  bail,  but  only  to  the 
amount  of  the  recognizance  and  after  DISCUSSION  of  the  property  of 
the  defendant. 

Art.  419.  If  under  the  circumstances  set  forth  in  the  last  preceding 
article,  the  judgment  be  fine  and  imprisonment,  or  imprisonment 
alone,  and  the  defendant  does  not  surrender  himself  before  the  return 
of  the  process  of  execution,  the  bail  is  liable  to  the  amount  of  the 
recognizance,  and  the  sentence  of  imprisonment  may  afterwards  be 
executed  whenever  the  defendant  is  found. 

Art.  420.  The  defendant  being  at  the  bar,  the  verdict  shall  be  read 
to  him,  and  he  shall  be  asked  whether  he  have  any  legal  cause  to  show 
why  judgment  should  not  be  pronounced  against  him. 

Art.  421.   It  will  be  good  cause  to  show,  in  answer  to  this  address  : 

1.  That  the  defendant  has  received  a  pardon  from  the  constitutional 
authority.     On   the  production   of  which,  legally  authenticated,   the 
defendant  shall  be  discharged,  if  the  pardon  be   unconditional,  and  if 
there  be  no  other  legal  cause  for  his  detention  but  that  on  which  the 
pardon  operates  ;   but  if  the  pardon  be  conditional,  and  the  fulfilment 
of  any  of  its  conditions  requires  his  further  detention,  he  shall  be  re- 
committed. 

2.  It  may  be  alleged  in  behalf  of  the  defendant,  that  he  is  INSANE  ; 
and,  if  the  application  be  supported  by  such  proofs  as  satisfies  the  court 
of  the  fact,  judgment  shall  not  be  pronounced,  unless  a  jury,  to  be 
impannelled   for  that  purpose  in  the  manner  herein  after  directed, 
shall  decide  that  he  is  not  insane. 

3.  The  defendant  may  state,  that  he  has  good  cause  to  offer  either 
in  arrest  of  judgment  or  for  a  new  trial,  and  that  by  some  unavoid- 
able accident,  or  cause,  over  which  he  had  no  control,  he  was  pre- 
vented from  submitting  the  motion  in  the  time  prescribed  ;   and  if 
such  accident,  or  cause,  be  shown  to  the  satisfaction  of  the  court,  the 


CODE  OF  PROCEDURE.  541 

judgment  shall  he  deferred  ;   and  they  shall  proceed,  as  in  other  cases, 
to  decide  on  the  motion  in  arrest  of  judgment,  or  for  a  new  trial. 

4.  He  may  allege,  that  he  is  not  the  person  against  whom  the  ver- 
dict was  pronounced,  and  pray  that  his  identity  may  be  inquired  of 
by  a  jury  ;  and  if  he  shall  make  affidavit  of  the  truth  of  such  allega- 
tion, a  jury  shall  be  impannelled  to  try  and  determine  on  the  identity 
of  the  person,  at  such  time  as  the  court  shall  direct. 

Art.  422.  If  a  defendant,  sentenced  to  imprisonment,  shall  escape 
before  he  has  been  committed,  the  sentence  cannot  be  executed  on 
any  person  who  shall  be  apprehended  under  an  allegation,  or  suspi- 
cion of  his  being  the  delinquent,  until  he  has  been  brought  before  the 
court  and  asked  if  he  have  any  cause  to  show  why  the  sentence  should 
not  be  executed.  When,  if  an  allegation  of  non-identity  be  made,  and 
supported  by  affidavit,  the  same  proceedings  shall  take  place  as  are 
provided  for  by  the  last  article  ;  and  until  such  decision  he  shall  be 
kept  in  custody. 

Art.  423.  In  cases  where  the  court  has  a  discretionary  power  as 
to  the  measure  or  selection  of  the  punishment,  if  either  the  public 
prosecutor  or  the  defendant  shall  allege  that  he  has  matter  to  offer 
which  ought  to  produce  an  increase  or  diminution  of  the  punishment, 
which  did  not  appear  on  the  trial  ;  the  court  may  hear  the  same,  or 
in  their  discretion  give  time  to  produce  it ;  provided  it  apply  to 
some  one  of  the  points  set  forth  in  the  next  following  section.  But 
no  evidence  shall  be  taken  of  any  circumstance  in  aggravation  which 
was,  or  ought  to  have  been  alleged,  in  the  act  of  accusation  ;  or  in 
alleviation,  which  might  have  been  produced  on  the  trial  to  show  the 
defendant  not  to  be  guilty. 

Art.  424.  If  no  application,  in  either  of  the  modes  above  provided 
for,  shall  be  made  for  arresting  or  suspending  the  judgment,  or  if  be- 
ing made  they  should  be  overruled,  the  court  shall  proceed  to  enter 
their  judgment  on  the  minutes  of  the  court,  and  to  declare  it  to  the 
defendant,  which  is  called  passing  the  sentence. 

Art.  425.  In  all  cases  of  crime,  and  of  misdemeanor  prosecuted 
separately,  the  sentence  of  each  prisoner  shall  be  pronounced  seve- 
rally, but  in  the  presence  and  hearing  of  all  who  may  have  been  con- 
victed during  the  same  term  of  the  court. 

Art.  426.  The  judge  who  pronounces  sentence  must  perform  this 
duty  in  a  manner  that  he  may  deem  the  best  calculated  to  give  effect 
to  the  example  upon  the  hearers  ;  the  strictest  silence  must  be  ob- 
served by  those  who  are  present  ;  and  it  should  be  accompanied  with 
such  reflections  as  may  impress  on  the  mind  the  importance  of  obe- 
dience to  the  laws,  and  the  dangers  and  infamy  of  infringing  them. 

Art.  427.  When  sentence  is  pronounced  for  murder,  the  seat  and 
table  of  the  court  shall  be  hung  in  black,  and  the  prisoner  shall,  imme- 
diately after  the  sentence  is  pronounced,  be  enveloped  in  a  black  man- 
tle that  shall  cover  his  whole  body,  with  a  cowl  or  veil  drawn  over 
his  head  ;  and  shall  be  thus  conveyed  in  a  cart,  hung  with  black,  to 
the  place  of  his  confinement. 

Art.  428.  If  the  judgment  be  the  imposition  of  a  fine,  the  clerk, 
shall,  without  delay,  issue  execution  for  its  recovery  in  the  manner 
directed  by  law. 

Art.  429.  If  the  sentence  direct  the  forfeiture  of,  or  suspension 
from,  the  exercise  of  any  office,  or  of  any  political  or  civil  right,  one 
copy  of  the  judgment  shall  be  sent  to  the  governor,  who  shall  cause 


542  CODE  OF  PROCEDURE. 

it  to  be  filed  and  recorded  in  the  office  of  the  secretary  of  state,  and 
published  for  one  week  in  the  gazette  printed  by  the  state  printer. 

Art.  430.  If  the  sentence  be  for  imprisonment,  the  sheriff  shall 
deliver  a  copy  of  the  judgment,  together  with  the  body  of  the  defend- 
ant, to  the  keeper  of  the  prison  in  which  the  sentence  is  to  be  executed. 


SECTION  II. 

Of  the  exercise  of  the  discretionary  power  given  to  the  court  in   the  selection  arid  appor- 
tionment of  punishments. 

Art.  431.  Laws  apparently  equal  in  their  provisions  become  un- 
equal and  unjust  if  indiscriminately  applied,  without  modification,  to 
all  who  become  subject  to  their  operation.  A  difference  of  physical 
force  or  moral  feelings,  in  several  culprits,  may  render  the  same  pun- 
ishment light  to  one  which  would  be  intolerable  to  another.  Certain 
circumstances,  moreover,  attending  the  commission  of  the  same  kind  of 
offence,  may  render  it  more  or  less  immoral,  injurious  or  difficult  to 
be  repressed.  No  legislation  can  be  sufficiently  minute  to  provide 
for  all  these  gradations.  The  deficiency  can  only  be  supplied  by 
vesting  in  the  judge,  who  applies  the  law,  a  discretionary  power, 
within  certain  limits,  to  select  the  kind  of  punishment  adapted  to  the 
case,  and  to  increase  or  diminish  its  degree.  The  exercise  of  this 
discretion  forms  one  of  the  most  important  and  difficult  functions  of  the 
judiciary  power  :  in  practice,  it  must  of  necessity  be  irregular  ;  but,  in 
order  to  render  it  as  uniform  as  the  nature  of  the  case  will  admit,  the 
following  rules  are  established,  and  these  principles  are  enounced 
in  order  more  effectually  to  impress  on  the  mind  of  the  judge  that 
the  discretion,  vested  in  him  by  law,  is  not  an  arbitrary  power,  to  be 
exercised  according  to  his  caprice,  or  his  feelings,  or  to  gratify  his 
passions  ;  but  that  it  is  required  to  be  an  act  of  sound  judgment,  guided 
by  views  of  utilit}',  justice,  and  good  morals  ; — and  that  in  using  the 
power  vested  in  him,  of  selecting,  of  increasing,  and  of  diminishing 
the  punishment,  he  must  act  as  he  supposes  the  legislature  would  have 
done  had  it  been  possible  for  them  to  provide  for  the  particular  case 
under  his  consideration. 

Art.  432.  The  scale  of  punishment,  in  this  system  of  penal  law,  is 
so  graduated,  that  the  medium  between  the  highest  and  lowest  punish- 
ments, where  a  discretion  is  given,  is  intended  to  be  applied  to  offences 
marked  by  no  circumstances  of  extenuation  or  aggravation. 

Art.  433.  The  following  are  to  be  considered  as  circumstances  of 
aggravation.  The  effect  they  are  to  have  in  the  increase  of  punishment 
cannot  be  prescribed,  but  is  left  to  the  discretion  of  the  judge,  within 
the  limits  given  by  law,  in  each  case. 

1.  If  the  person  committing  the  offence  was,  by  the  duties  of  his 
office,  or  by  his  CONDITION,  obliged  to  prevent  the  particular  offence 
committed,  or  to  bring  offenders  committing  it  to  justice. 

2.  If  he  held  any  other  public  office,  although  not  one  requiring  the 
suppression  of  the  particular  offence. 

3.  Although  holding  no  office,  if  his  education,  fortune,  profession, 
or  reputation,  placed  him  in  a  situation  in  which  his  example  would 
probably  influence  the  conduct  of  others. 

4.  When  the  offence  was  committed  with  premeditation. 


CODE  OF  PROCEDURE.  543 

5.  Or  in  consequence  of  a  plan  formed  with  others. 

6.  When  the  defendant  endeavoured  to  induce  others  to  join  in  com- 
mitting the  offence. 

7.  When  the  CONDITION  of  the  offender  created  a  trust  which  was 
broken  by  the  offence,  or  when  it  afforded  him  easier  means  of  com- 
mitting the  offence. 

8.  When,  in  the  commission  of  the  offence,  any  other  injury  was 
offered  than  that  necessarily  suffered  by  the  offence  itself;  such  as 
wanton  cruelty,  or  humiliating  language,  in  cases  of  personal  injury. 

9.  When  it  was  attended  with  the  breach  of  any  other  moral  duty 
than  that  necessarily  broken  in  committing  the  offence  ;  such  as  per- 
sonal injury  accompanied  by  ingratitude. 

10.  When  the  injury  was  offered  to  one  whom  age,  sex,  office,  con- 
duct, or  CONDITION,  entitled  him  to  respect  from  the  offender. 

11.  When  the  injury  was  offered  to  one  whose  age,  sex,  or  infirmity 
rendered  incapable  of  resistance. 

12.  When  the  general  character  of  the  defendant  is  marked  by  those 
passions  or  vices,  which  generally  lead  to  the  commission  of  the  offence 
of  which  he  has  been  convicted. 

13.  Whenever  the  injury  has  been  offered  without  any  provocation 
on  the  part  of  the  person  suffering  by  it,  and  no  other  circumstances  of 
aggravation  or  extenuation  appear,  the  medium  punishment  is   that 
which  ought  to  be  inflicted.     The  existence  of  such  provocation  is 
hereinafter  made  a  motive  of  extenuation  ;  but  when  the  act  was  done 
from  mere  malignity  of  disposition,  and  not  under  the  influence  of  any 
of  those  passions  which  generally  actuate  mankind,  it  is  an  aggravation 
of  the  offence. 

Art.  434.  There  are  also  circumstances  which  ought  to  enhance  the 
punishment,  although  they  form  no  aggravation  of  the  offence ;  these 
are: 

1.  The  frequency  of  the  offence.     In  most  cases  where  the  law  is 
well  administered,  this  can  only  take  place  when  the  gratification  de- 
rived from  the  offence  is  more  than  equivalent  to  the  evil  produced  by 
the  punishment.    When  the  observation  of  the  magistrate  induces  him 
to  believe  that  this  is  the  cause  of  the  increase  of  the  crime,  it  should 
be  a  motive  with  him  to  exercise  the  discretion  given  him  to  augment 
the  punishment. 

2.  The  wealth  of  the  offender.    Where  this  is  great,  in  all  cases  of 
fine,  the  penalty  must  be  increased  in  proportion.     In  all  cases  where 
the  punishment  is  an  alternative  of  fine  or  imprisonment,  or  cumulation 
of  both,  and  the  wealth  of  the  offender  is  so  great  as  to  render  the  pay- 
ment of  the  highest  fine  that  can  be  imposed  a  matter  of  little  import- 
ance to  him,  imprisonment  ought  to  be  inflicted,  unless  some  of  the 
other  circumstances,  which  are  herein  directed  to  be  considered,  should 
render  it  improper. 

Art  435.  The  following  circumstances  are  to  be  considered  in  alle- 
viation of  the  punishment : 

1.  The  minority  of  the  offender:  if  so  young  as  to  justify  a  supposi- 
tion that  he  was  ignorant  of  the  law,  or  that  he  acted  under  the  influence 
of  another,  although  he  may  have  attained  the  age  fixed  by  law  for 
rendering  him  responsible,  and  although  he  have  not  committed  the 
offence  by  such  command,  persuasion,  or  aid,  as  by  the  "Penal  Code" 
entitle  him  to  a  certain  diminution  of  punishment. 


544 


CODE  OF  PROCEDURE. 


2.  If  the  offender  was  so  old  as  to  render  it  probable  that  the  faculties 
of  his  mind  were  weakened. 

3.  The  CONDITION  of  the  offender.     This  in  the  several  relations  of 
wife,  child,  apprentice,  and  ward,  is  specifically  provided  for  under  cer- 
tain circumstances,  in  the  Penal  Code.     Those  CONDITIONS  under  other 
circumstances  than  those  there  detailed  ;  and  all  other  CONDITIONS,  which 
suppose  the  party  to  have  been  influenced  in  committing  the  offence  by 
another,  standing  in  a  correlative  superior  situation  to  him,  afford  in- 
ducements for  diminishing  the  degree  of  punishment. 

4.  The  order  of  a  superior  military  officer,  is  no  justification  for 
committing  a  crime,  but  under  circumstances  of  misapprehension  of 
the  duty  of  obedience,  may  be  shown  in  extenuation  of  the  offence. 

5.  When  the  offence  was  committed  under  a  combination  of  circum- 
stances, and  under  the  influence  of  motives  which  may  not  probably 
recur  either  with  respect  to  the  offender  or  to  any  other. 

6.  The  measure  of  increased  punishment  for  a  repetition  of  offences 
of  the  SAME  NATURE,  is  prescribed  by  the  Penal  Code;  therefore,  the 
medium  punishment  is  that  which  is  intended  for  the  first  offence  when 
it  is  not  attended  by  any  circumstance  of  aggravation  or  extenuation: 
but  if  the  party,  convicted  for  the  first  offence,  have  previously  sus- 
tained a  good  character,  and  that  offence   be  the  only  one  of  ANY 
NATURE  that  he  has  committed,  such  good  character  and  exemption 
from  other  offences,  is  a  motive  for  lessening  the  punishment. 

7.  When  the  offence  has  been  caused  by  great  provocation,  or  other 
cause  sufficient  to  excite  in  men  of  ordinary  tempers  such  passions  as 
require  unusual  strength  of  mind  to  restrain. 

8.  The  state  of  health  of  the  delinquent  and  the  sex  (if  a  female) 
must  be  considered  in  the  nature  and  duration  of  imprisonment,  where 
that  is  a  part  of  the  sentence. 

Art.  436.  In  selecting  the  particular  kind  of  punishment,  where  there 
is  a  discretion,  attention  should  be  paid  to  the  sex,  the  constitution, 
the  fortune,  the  education,  and  habits  of  life  of  the  offender.  It  is  ap- 
parent that  hard  labour  is  not  the  same  punishment,  when  applied  in 
the  same  degree,  to  one  used  all  his  life  to  bodily  exertion  and  to  an- 
other bred  up  to  literary  pursuits  ;  to  a  robust  man  and  to  a  delicate 
woman.  That  incapacity  to  be  elected  to  public  office  will  be  a  greater 
penalty  to  one  used  to  public  life,  than  to  him  whose  pursuits  and 
education  have  fitted  only  for  attention  to  his  own  affairs;  and  that  the 
possessor  of  a  large  fortune  will  consider  a  moderate  fine  as  no  punish- 
ment. 

Art.  437.  This  section  is  from  its  nature  recommendatory;  and  obli- 
gatory only  on  the  conscience  of  the  judge;  it  is  intended  to  direct,  not 
to  confine,  the  exercise  of  his  discretion.  The  only  obligation  it  creates 
is  the  moral  one  of  exercising  his  power  on  this  subject  so  as  to  appor- 
tion the  punishment,  not  only  to  the  offence,  but  to  the  motives  and 
other  circumstances  of  the  offender;  so  as  to  equalize,  as  far  as  possible, 
the  effects  of  the  punishment,  and  cause  it,  by  a  proper  selection,  to 
counteract  the  passions  which  produced  it. 

Art.  438.  All  matters  in  aggravation,  which  form  no  part  of  the 
charge  in  the  act  of  accusation,  and  matters  of  extenuation  which  do 
not  amount  to  a  legal  defence,  and  which  have  not  necessarily  or  inci- 
dentally appeared  to  the  court  on  the  trial,  may  be  produced,  either 
by  the  examination  of  witnesses  in  open  court,  or  by  their  affidavits,  as 


CODE  OF  PROCEDURE.  545 

the  court  may  deem  most  conducive  to  justice  in  each  particular  case; 
but  the  opposite  party  must,  in  all  cases,  have  an  opportunity  of  cross- 
examining  the  witnesses,  if  he  require  it,  and  of  producing  counter- 
proof. 


CHAPTER  XIV. 

Of  forms  to  be  used  in  judicial  proceedings  in  court. 

SECTION  I. 

Of  oaths  and  affirmations. 

Art.  439.  An  affirmation  is  a  solemn  declaration  made  before  a  per- 
son or  court  authorized  to  receive  it,  attesting  the  truth  of  a  statement 
already  made,  or  about  to  be  made,  by  the  affirmant,  or  the  truth  or 
sincerity  of  a  promise  made  by  him. 

Art.  440.  An  oath  is  a  similar  declaration,  accompanied  by  a  reli- 
gious invocation  of  the  Supreme  Being  to  bear  witness  to  the  truth  of 
the  declaration  or  the  sincerity  of  the  promise,  and  agreeing  to  renounce 
the  blessing  of  God  and  the  respect  of  man  if  the  engagement  should 
be  broken.  , 

Art.  441.  In  order  the  better  to  enforce  the  obligation  of  an  oath 
upon  those  who  might  disregard  its  religious  penal  sanctions,  an  hono- 
rary engagement  is  expressly  added  in  the  form  established  by  this 
Code. 

Art.  442.  An  oath  or  affirmation  can  be  legally  administered,  only 
by  a  court,  a  magistrate,  or  some  one  specially  commissioned  to  perform 
that  function. 

Art.  443.  If  the  person  to  whom  the  oath  is  to  be  administered  pro- 
fess the  Christian  religion,  the  oath  shall  be  taken  in  the  following  form. 
The  deponent  shall  lay  his  hand  on  the  scripture  of  the  New  Testament, 
and  shall,  with  an  audible  voice,  repeat  the  following  formule  :  "I 
swear,  in  the  presence  of  Almighty  God,  and  by  His  holy  word  ;  and 
on  the  faith  of  a  person  of  probity  and  honour  declare  that  [here  he 
shall  repeat  the  purport  of  the  oath] — and  may  God  so  bless  and  man 
so  honour  me  as  this  oath  is  truly  and  sincerely  made." 

Art.  444.  If  the  person  to  whom  the  oath  is  to  be  administered  be 
one  of  the  Jewish  religion,  he  shall  take  it  with  his  head  covered,  with 
one  hand  on  the  gospels  of  the  Old  Testament,  and  shall  repeat  the 
formule  denoted  by 'the  last  preceding  article. 

Art.  445.  If  the  deponent  profess  any  religion,  according  to  the  tenets 
of  which,  any  other  ceremony  is  necessary  to  give  the  sanction  of  re- 
ligion to  the  oath,  such  ceremony  shall  be  observed. 

Art.  446.  The  sanction  of  religion  is  added  only  to  strengthen  the 
legal  force  of  the  engagement ;  any  error,  therefore,  in  that  part  of  the 
form,  either  as  respects  the  Christian  or  any  other  religion,  will  not 
affect  the  civil  obligation  or  the  penal  consequences  of  its  breach,  nor 
can  any  ecclesiastical  power  dissolve  or  lessen  its  force. 
3  T 


546  CODE  OF  PROCEDURE. 

Art.  447.  If  the  person  professing  the  Christian  religion,  to  whom 
an  oath  is  tendered,  shall  declare  that  he  has  religious  scruples  against 
swearing  with  his  hand  on  the  scriptures,  that  part  of  the  ceremony 
shall  be  omitted  ;  but  he  shall  raise  his  right  hand,  repeat  the  same 
formule  that  is  above  directed  for  those  professing  that  religion,  omit- 
ting only  the  words  "and  by  his  holy  word." 

Art.  448.  Instead  of  an  oath,  in  all  cases  where  it  is  required  or  per- 
mitted by  law,  an  affirmation  shall  be  made  by  those  who  are  members 
of  any  religious  sect,  according  to  the  tenets  of  which  it  is  considered 
irreligious  to  take  an  oath,  and  such  affirmation  is  declared,  in  all  re- 
spects, to  be  equivalent  to  an  oath;  and  its  breach,  or  falsity,  incurs  the 
same  penalties  with  the  breach,  or  falsity,  of  an  oath. 

Art.  449.  The  declaration  of  the  affirmant  that  he  belongs  to  such 
sect  as  is  mentioned  in  the  last  preceding  article,  shall  be  sufficient  proof 
of  the  fact ;  but,  although  it  should  be  false,  the  affirmation  shall  be  as 
valid,  and  its  breach  or  falsity  shall  produce  the  same  consequences  as 
if  his  declaration  had  been  true. 

Art.  450.  The  affirmant  shall  pronounce,  in  an  audible  voice,  the 
following  formule  :  "I  do  solemnly,  sincerely,  and  truly,  declare  and 
affirm,  that  [the  purport  of  the  affirmation  must  be  here  enounced.]" 

Art.  451.  No  oath  need  be  administered  to  an  executive  officer  of 
justice  (after  he  has  taken  his  oath  of  office),  that  he  has  done  or  will 
do  any  act  that  is  required  of  him  by  the  duties  of  his  office;  a  declara- 
tion to  that  effect,  signed  by  the  officer  in  cases  where  his  signature  is 
required,  is  sufficient;  and  the  breach,  or  falsity,  of  such  declaration  in- 
curs all  the  penalties  that  would  have  ensued  on  the  breach  or  falsity 
of  an  oath. 

Art.  452.  Nothing  in  the  last  article  contained  shall  prevent  the 
swearing  and  examination  of  an  officer  of  justice  as  to  the  manner  in 
which  an  official  act  was  performed,  when  those  circumstances  become 
a  matter  of  controversy  ;  the  intent  of  the  said  article  being  to  avoid 
the  multiplicity  of  oaths  which  occurs  by  the  swearing  of  executive 
officers,  to  the  truth  of  their  returns,  in  order  to  fine  witnesses  or  ju- 
rors for  non-attendance,  making  affidavits  to  the  service  of  notices, 
swearing  them  to  go  out  with  a  juror,  or  with  the  jury  when  they  re- 
tire to  deliberate,  and  other  dfficial  acts  of  the  like  nature  ordered  by 
the  court. 

Art.  453.  All  returns  of  the  manner  in  which  any  written  order  has 
been  executed,  or  any  written  notice  has  been  delivered,  must  be  in 
writing,  endorsed  on  or  annexed  to  the  order  or  notice,  or  on  copies 
thereof,  and  signed  by  the  officer  who  has  executed  it. 

Art.  454.  When  the  duty  which  has  been  performed,  is  not  the  ser- 
vice of  any  written  order  or  notice,  it  shall  be  proved  by  verbal  decla- 
ration of  the  officer,  in  open  court,  and  noted  on  the  minutes. 

Art.  455.  The  formule  of  the  verbal  declaration  of  any  official  act 
that  has  been  performed,  and  referred  to  in  the  preceding  article,  is  as 
follows  :  "  I  do  declare,  under  the  sanction  of  my  oath  of  office,  that  I 
did,  &c.  [enounce  the  particulars  of  the  service  performed.]" 

Art.  456.  When  the  duty  is  an  official  one,  but  to  be  performed  by 
an  officer  especially  designated  by  the  court  for  the  purpose,  the  obli- 
gation to  perform  it  is  incurred  by  the  clerk  stating,  in  the  form  pre- 
scribed, the  duty  that  is  to  be  performed,  and  the  assent  of  the  officer 
verbally  given  to  perform  it. 


CODE  OF  PROCEDURE.  547 

Art.  547.  The  formule  for  the  statement  to  be  made  by  the  clerk, 
under  the  last  preceding  article,  is  as  follows,  addressing  himself  to  the 
officer  he  shall  say  :  "  You  are  required,  under  the  sanction  of  your 
oath  of  office,  to  [keep  this  jury,  &c.  or  any  other  official  act].  Will 
you  perform  this  duty?"  To  which  the  officer  shall  answer,  "  I  will." 

Art.  458.  The  oaths,  affirmations,  and  declarations,  to  be  adminis- 
tered in  the  course  of  judicial  proceeding,  in  a  court  of  criminal  juris- 
diction, are  the  following,  each  of  them  to  be  begun  and  concluded  by 
the  formule  hereinbefore  prescribed  for  each  of  these  engagements: 

1.  That  of  a  grand  juror.     "  I  swear,  &c.,  as  one  of  the  grand  jurors 
for  this  district,  I  will  diligently  inquire,  and  true  presentment  make, 
of  all  such  offences  as  this  court  has  cognizance  of:  that  I  will  present 
no  one  from  hatred  or  malice,  nor  leave  any  one  unpresented  from 
favour,  affection,  reward,  or  the  hope  of  reward.     But  that  I  will,  to 
the  best  of  my  ability,  perform  all  the  duties  enjoined  upon  me  as  a 
grand  juror,  and  may  God  so  bless,  &c." 

2.  The  oath  of  a  petit  juror.      "I  will,  without  passion,  prejudice, 
or  favour,  hear  the  proofs  and  arguments  offered  in  this  cause,  and  de- 
termine on  the  truth  of  the  accusation  submitted  to  my  decision  ;  and 
give  a  true  verdict  according  to  law  and  the  evidence,  and,  &c." 

3.  The  oath  of  a  witness.     "The  evidence  I  am  about  to  give,  shall 
be  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  under  the 
direction  of  the  court  as  to  the  legality  of  the  testimony." 

4.  The  oath  of  a  deponent  to  an  affidavit.     "  What  is  stated  in  this 
affidavit,  as  of  my  own  knowledge,  is  true  [if  any  other  matter  be 
stated,  add]  and  all  the  other  matters  stated  as  true,  1  believe  to  be 
true." 

5.  Declaration  of  an  officer  of  the  service  of  a  verbal  order  or  notice. 
"  That  I  did,  on  the  day  of  now  last  past,  give  notice  to 
A.  B.  that  his  attendance  was  immediately  required  in  this  court  as  a 
juror  or  witness." 

6.  Statement  and  direction  to  an  executive  officer  to  perform  the  duty 
of  going  out  with  a  juror  or  jurors  during  a  trial.  "  You  are  required, 
&c.  logo  out  with  such  of  the  jurors  as  have  leave  of  the  court.     You 
shall  not  suffer  any  one  to  speak  to  them,  nor  shall  you  yourself  speak 
to  them,  unless  it  be  to  require  their  return  to  the  court,  and  you  shall 
return  with  them  without  any  unnecessary  delay." 

7.  The  like  direction  to  keep  thejury  during  their  retirement.     "You 
are  required,  &c.  to  keep  this  jury  in  some  convenient  place,   without 
food  and  drink,  save  bread  and  water,   unless  with  leave  of  the  court. 
You  shall  suffer  no  one  to  speak  to  any  of  them,  neither  shall  you  speak 
to  them  yourself,  without  such  leave  ;  unless  it  be  to  ask  them  whether 
they  be  agreed  on  their  verdict ;  and  you  shall  return  with  them  into 
court  when  they  are  so  agreed  ;  [in  cases  where  a  secret  verdict  is  permitt- 
ed, the  following  clause  shall  be  added,]  or  you  shall  suffer  them  to  dis- 
perse after  having  made  a  secret  verdict,  if  they  shall  obtain  leave  of 
the  court  for  that  purpose." 

Art.  459.  All  affidavits  must  be  certified  to  have  been  sworn  or  affirm- 
ed by  the  clerk  of  the  court,  if  taken  in  court,  with  the  style  of  the 
court  ;  or  by  the  magistrate  or  commissioner,  with  the  addition  of  their 
offices  ;  and  must  be  signed  by  the  deponent  in  his  hand-writing  if  he 
can  write,  or  with  his  mark  if  he  cannot. 

Art.  460.  An  oath,  taken  in  court,  shall  be  administered  by  the  judge 


548  CODE  OF  PROCEDURE. 

or  the  clerk,  by  either  enouncing  the  formule  of  the  oath  to  the  person 
who  lakes  it,  and  causing  him  to  repeat  it  aftej  him,  or  giving  it  to  him 
in  writing  that,  he  may  read  it  aloud. 

Art.  461.  Strict  silence  shall  be  observed  by  all  but  those  occupied  in 
administering  and  repeating  the  oath  ;  and  the  court  shall,  during  that 
time,  transact  no  other  business. 

Art.  462.  If  any  one  who  is  legally  called  on  to  take  an  oath,  or  affirm- 
ation, or  to  be  examined  as  a  witness  in  any  court  of  civil  or  criminal 
jurisdiction,  shall  refuse  so  to  do,  he  may  be  committed  to  prison,  in 
close  custody,  until  he  shall  consent,  besides  incurring  such  other  penal- 
ties as  are  provided  by  law  ;  provided,  that  such  imprisonment  shall  not 
continue  longer  than  the  end  of  the  term  in  which  he  was  committed, 
unless  the  commitment  be  within  three  days  of  the  end  of  the  term  ; 
in  which  case,  the  imprisonment  may  continue  for  three  days  after. 


SECTION  II. 

Of  the  opening  and  adjournment  of  courts,  and  of  the  form  in  which  the  minutes  are  to 

be  kept. 

Art.  463.  No  COURT,  according  to  the  definition  of  the  term,  can  do 
any  legal  act  before  it  is  opened  by  a  public  proclamation,  which  may 
give  notice  that  the  persons  authorized  to  constitute  the  court  have  met, 
under  the  circumstances  necessary  to  give  existence  to  that  body;  which 
opening  must  be  entered  on  the  minutes,  stating  the  day,  hour,  and  place, 
at  whicli  it  took  place. 

Art.  464.  Adjournments  must,  in  like  manner,  be  made  by  proclama- 
tion, entered  on  the  minutes  ;  and  if,  from  the  continuance  of  a  trial  or 
other  cause,  the  court  shall  continue  its  sessions  until  after  twelve  at 
night,  the  entry  shall  be  made  in  this,  as  in  all  other  cases,  according  to 
the  truth. 

Art.  465.  The  minutes  of  a  court  are  a  record  of  all  the  proceedings 
of  such  court ;  and,  in  order  to  secure  their  correctness,  a  book  shall  be 
kept  by  the  clerk,  in  which  he  shall  enter  a  note  of  each  proceeding  at 
the  time  it  takes  place.  This  book  shall  be  open  for  the  inspection  of 
all  persons  interested,  until  the  opening  of  the  court  on  the  next  day  ; 
and  immediately  after  the  opening,  the  minutes  of  the  preceding  session 
shall  be  openly  read  by  the  clerk,  and  all  errors  therein  shall  be  correct- 
ed by  order  of  the  court,  and  the  minutes  shall  then  be  fairly  copied  into 
the  record-book  of  minutes. 

Art.  466.  The  names  of  the  defendants  in  each  trial,  of  the  witnesses, 
and  of  the  jurors  who  are  sworn,  and  of  the  counsel  who  appear,  shall 
be  entered  on  the  minutes,  distinguishing  the  witnesses  called  for  the 
prosecution  from  those  called  by  the  defendant. 

Art.  467.  When  any  instrument  in  writing  is  produced  in  evidence, 
a  short  note  or  description  of  it,  containing  the  general  tenor,  the  par- 
ties, and  the  date,  shall  be  entered  on  the  minutes,  and  some  mark  made 
on  it  by  the  clerk  to  identify  it. 

Art.  468.  All  the  orders,  and  judgments,  and  every  other  act  of  the 
COURT  whatever,  shall  be  recorded  on  the  minutes. 

Art.  469.  A  note  of  every  application  made  to  the  court  during  its 


CODE  OF  PROCEDURE.  549 

session,  and  by  whom  made,  and  for  whom,  must  be  entered  on  the  mi- 
nutes, together  with  the  decision  of  the  court  thereon,  whether  granting 
or  refusing  the  application. 


SECTION  III. 

Of  the  order  of  proceeding  on  the  first  day  of  the  term. 

Art.  470.  The  judge  having  taken  his  seat,  shall  order  the  court  to  be 
opened.  The  clerk  shall  then  say,  "  Crier,  make  proclamation.  "  The 
crier  then,  with  a  loud  voice,  proclaims,  "Silence!  while  I  proclaim 
the  orders  of  the  court.  This  court  [repeating  the  STYLE  of  the  court] 
is  now  open  :  of  this  all  persons  are  required  to  take  notice,  and  to  de- 
mean themselves  with  the  reverence  due  to  the  laws  and  the  respect  they 
require  to  be  paid  to  the  important  functions  of  those  who  administer 
them." 

Art.  471.  The  clerk  shall  then,  after  entering  the  opening  of  the 
court  on  the  minutes,  order  the  crier  to  call  the  officers  of  justice,  whose 
duty  it  shall  be,  according  to  law,  to  attend  ;  which  he  shall  do  by. 
repeating  the  formule,  "  Silence!  while  I  proclaim  the  orders  of  the 
court" — which  formule  shall  introduce  all  proclamations  hereby  direct- 
ed to  be  made.  He  shall  then  say,  "All  officers  of  justice,  whose  duty 
it  is  to  attend  this  court,  answer  to  your  names,  or  you  will  incur  the 
penalties  of  law."  He  shall  then  call  each  name  three  times,  and  the 
clerk  shall  enter  on  the  minutes  the  appearance  or  default  of  each. 

Art.  472.  On  the  appearance  of  the  officers  the  sheriff  shall  assign 
to  each  his  separate  duty. 

Art.  473.  The  clerk  shall  then  order  proclamation  to  be  made  for 
calling  the  grand  jury,  which  shall  be  done  in  the  following  form:  "  You 
good  men,  who  have  been  selected  to  perform  the  important  duties  of 
grand  jurors,  answer  to  your  names,  and  take  your  seats  as  you  are 
called."  If  a  sufficient  number  of  the  jury  appear,  they  shall  be  sworn. 

Art.  474.  When  the  grand  jury  are  sworn,  the  court  shall  proceed 
to  give  them  their  charge,  and  to  have  that  part  of  this  code  read  to 
them  which  concerns  their  duties,  and  to  deliver  them  the  copy  of  the 
calendar  as  is  herein  before  directed.  Previous  to  which  the  clerk 
shall  direct  proclamation  of  silence  to  be  made  when  the  charge  is  giving 
to  the  grand  jury. 

Art.  475.  When  the  grand  jury  has  retired,  the  clerk  shall  order 
proclamation  to  be  made  for  the  calling  of  the  petit  jury,  in  the  follow- 
ing form:  "  You  good  men,  whose  duty  it  is  to  decide,  as  jurors,  be- 
tween the  state  of  Louisiana  and  those  who  are  accused  of  offences 
against  the  laws,  answer  to  your  names  as  they  are  called."  The  names 
on  the  panel  shall  then  be  called,  and  the  clerk  shall  take  note  of  the 
defaulters. 

Art.  476.  When  any  grand  juror  shall  appear,  after  the  others  are 
sworn,  the  oath  shall  be  administered  to  him,  and  he  shall,  with  a  cer- 
tificate of  its  being  taken,  be  sent  to  the  grand  jury. 

Art.  477.  Proclamation  shall  then  be  made,  requiring  all  magistrates 
who  have  taken  any  recognizances  or  examinations,  which  have  not 
been  delivered  to  the  clerk;  forthwith  to  bring  them  into  court. 


550  CODE  OF  PROCEDURE. 

Art.  478.  Persons  bound  by  recognizance  shall  then,  by  proclama- 
tion, be  called  as  follows  :  "  All  you  who  are  bound  by  recognizance  to 
appear  at  this  court  to  answer  complaints  against  you,  come  forth  when 
your  names  are  called,  or  your  recognizance  will  be  forfeited."  The 
defaulters  shall  then  be  noted,  and  proclamation  shall  be  made,  with  res- 
pect to  such  defaulters,  in  the  following  form:  A.  B.  and  C.  D.  [repeat- 
ing the  names  of  the  bail]  produce  E.  P.  [the  person  delivered  to  bail] 
for  whose  appearance  you  are  answerable,  or  you  will  forfeit  your 
recognizance." 


SECTION  IV. 

Of  the  forms  to  be  used  after  an  indictment  or  information  has  been  filed. 

Art  479.  When  an  act  of  accusation  has  been  filed,  founded  on  any 
written  instrument,  the  original  of  which  is  annexed  according  to  the 
former  provisions  of  this  code,  the  defendant,  at  the  time  for  that  pur- 
pose prescribed,  shall  be  brought  into  court,  and  the  court  shall  inquire 
whether  he  has  employed  counsel  for  his  defence  ;  if  he  has  not,  coun- 
sel shall  be  assigned  him.  The  clerk  shall  then  address  him  to  this 
effect  :  "  A.  B.  an  indictment  [or  information]  has  been  filed  against 
you,  of  which  you  have  been  served  with  a  copy  ;  here  is  the  original 
of  the  instrument  annexed  to  that  act.  You  are  at  liberty,  under  the 
inspection  of  an  officer  of  the  court,  to  examine  the  said  instrument, 
and  to  compare  it  with  the  original,  to  see  that  the  copy  is  correct." 

Art.  480.  After  the  defendant  shall  have  had  an  opportunity  of  ex- 
amining the  instrument  when  one  is  annexed,  and  in  all  cases  when  no 
instrument  is  annexed,  the  clerk  shall,  at  the  time  for  that  purpose 
herein  before  prescribed,  address  the  defendant  to  this  effect  :  "A.  B. 
if  you  have  any  exception  to  make  to  the  indictment  [or  information] 
of  which  you  have  received  a  copy,  either  for  any  defect  of  sub- 
stance or  form  [or  "  because  there  is  a  variance  between  the  copy  of 
the  instrument  in  the  indictment  and  the  original  which  you  have  seen," 
incases  where  there  is  an  instrument,]  or  because  the  name  by  which  you 
are  called  in  the  act  of  accusation  is  not  your  true  name,  this  is  the 
time  to  make  such  exception  ;  hereafter  it  will  be  too  late.7' 

Art.  481.  If  no  exception  be  made,  the  clerk  shall  write  on  the  back 
of  the  indictment  :  "  This  day  of  the  defendant 

in  this  indictment,  was  personally  called  on  to  make  exceptions,  if  any 
he  had  thereto,  and  warned  that  they  would  not  hereafter  be  received, 
but  made  none." 

Art.  482.  The  arraignment  shall  be  made  in  the  form  before  pre- 
scribed. 

Art.  483.  On  the  day  appointed  for  the  trial,  the  witnesses,  as  well 
on  the  part  of  the  prosecution  as  of  the  defendant,  shall  be  called  ;  and 
if  any  do  not  attend,  process  may  be  applied  for,  to  compel  their  atten- 
dance ;  or  if  an  application  to  postpone  the  trial  be  intended,  it  must 
be  made  before  a  juror  is  sworn. 

Art.  484.  If  the  trial  is  ordered  on,  the  clerk  shall  address  the  de- 
fendant to  this  effect  :  "  A.  B.  the  jurors  who  are  now  to  be  called  are 
those  who  are  to  decide  on  your  innocence  or  guilt.  If  you  do  not 


CODE  OF  PROCEDURE.  551 

desire  to  be  tried  by  any  particular  jurors,  you  may  set  aside  nine  of 
them,  without  assigning  any  cause  ;  and  if  you  have  good  cause  to  set 
aside  any  others,  you  may  do  so  by  declaring  it :  what  is  good  cause, 
your  counsel  will  explaitl  to  you.  If  you  have  any  objection  to  make 
to  the  manner  in  which  the  jury  has  been  drawn,  you  must  now  do  so, 
or  you  will  hereafter  be  precluded.  Your  objections  to  individual 
jurors  must  be  made  when  they  come  to  be  sworn,  but  before  they  are 
sworn." 

Art.  485.  The  clerk  shall  then  proceed  to  draw  the  names  of  the 
jurors,  and  as  each  shall  come  to  be  sworn,  the  clerk  shall,  in  cases  of 
CRIME,  say,  "  Defendant,  look  on  the  jury  !  Juror,  look  on  the  de- 
fendant !" — And  if  no  challenge  is  made,  shall  proceed  to  administer 
the  oath. 

Art.  486.  When  a  full  jury  shall  be  sworn,  the  clerk  shall  address 
them  thus  :  "  Gentlemen  of  this  jury,  an  indictment  [or  information, 
as  the  case  may  be,]  has  been  filed  against  A.  B.  [the  defendant]  in 
the  following  words.  To  this  accusation  he  has  pleaded  not  guilty. 
You  are  the  persons  upon  whom  the  task  is  imposed  of  deciding  whe- 
ther he  be  guilty  or  not  guilty.  This  you  are  to  determine  according 
to  the  evidence  which  will  be  offered  to  you." 

Art.  487.  Courts  of  criminal  jurisdiction  may  make  such  rules  for 
the  order  of  proceeding  therein  ;  but  copies  of  all  such  rules  must  be 
sent  to  the  governor,  the  senate,  and  the  house  of  assembly,  on  the 
first  day  of  the  session  after  they  shall  have  been  made,  or  if  the  leg- 
islature be  in  session  when  such  rules  are  entered,  within  five  days  after- 
wards ;  provided,  that  no  such  rule  shall  be  contrary  to  any  provision 
in  this  system  of  penal  law. 


CHAPTER  XV. 


Of  the  officers  of  courts  of  criminal  jurisdiction. 

Art.  488.  There  shall  be  in  every  court  of  criminal  jurisdiction  the 
following  officers :  a  clerk,  an  interpreter,  a  reporter,  a  crier,  and  a 
sheriff  with  his  deputies. 


SECTION  I. 
Of  the  clerk. 

Art.  489.  The  duties  of  the  clerk  are,  to  keep  correct  minutes  under 
the  direction  of  the  judge  ;  to  preserve  all  the  papers  and  records  of  the 
court ;  to  administer  oaths  in  court ;  to  direct  the  crier  to  call  the  per- 
sons whose  attendance  may  be  required  ;  to  file  all  papers  directed  to  be 
filed,  by  endorsing  on  them  some  description  by  which  they  may  be 
known,  together  with  the  date  of  their  being  filed  ;  to  receive  and  re- 
cord all  indictments  and  informations,  and  to  arraign  the  defendants  ; 
to  demand,  receive,  record  their  answers  j  to  give  authenticated  copies 


552  CODE  OF  PROCEDURE. 

of  the  minutes  and  records  ;  and  to  do  all  other  things  as  he  may  be  re- 
quired by  law  to  perform. 

Art.  490.  The  clerk  may  appoint  a  deputy,  whose  official  acts  shall 
be  valid  ;  provided  the  deputation  be  in  writing  and  recorded  on  the 
minutes  of  the  court.  When  neither  the  clerk  nor  his  deputy  appears, 
the  judge  may  appoint  some  person  to  officiate,  whose  appointment 
shall  be  entered  on  the  minutes  of  the  court,  and  whose  official  acts 
shall  be  valid. 

Art.  491.  The  clerk  is  civilly  liable  for  all  the  acts  of  his  deputy, 
and  criminally  for  all  such  as  he  shall  have  authorized,  or  knowingly 
permitted,  in  the  manner  described  in  the  criminal  code. 

Art.  492.  The  clerk  shall  keep  an  office,  in  which  all  the  records 
and  papers  of  the  court  shall  be  kept,  and  methodically  arranged  in 
such  manner  as  the  judge  shall  order  ;  and  the  court  shall,  by  rule,  di- 
rect at  what  hours  such  office  shall  be  kept  open  ;  and  during  such  hours 
the  clerk  is  bound  to  show  any  paper  filed  in  such  office,  to  any  person 
who  may  require  to  see  the  same  ;  but  no  acts  of  accusation,  or  evi- 
dence in  support  of  the  same  shall  be  shown,  or  copies  thereof  given, 
to  any  but  the  court,  the  party  accused,  the  grand  jury,  or  the  public 
prosecutor,  before  the  trial  of  the  cause. 


SECTION  II. 

Of  the  interpreter. 

Art.  493.  An  interpreter  shall  be  appointed  for  each  court  of  crimi- 
nal jurisdiction,  who  shall  be  well  acquainted  with  the  English,  French, 
and  Spanish  languages,  and  who  shall  be  sworn  faithfully  to  perform 
the  duties  of  his  office. 

Art.  494.  It  shall  be  the  duty  of  the  interpreter  to  translate  such 
papers  as  are  produced,  and  to  interpret  such  declarations  and  proceed- 
ings as  are  made  in  court,  so  that  they  may  be  understood  by  the  court, 
the  jury,  the  parties,  and  others  present  who  ought  to  know  the  con- 
tents ;  if  any  of  them  are  ignorant  of  the  language  in  which  such 
papers  are  written,  such  declarations  given,  or  such  proceedings  had. 

Art.  495.  Whenever  the  defendant  cannot  understand  English,  a  trans- 
lation, of  the  act  of  accusation  and  of  all  papers  annexed  to  the  same, 
into  some  language  which  he  understands,  shall  be  given  to  him,  with 
the  copy  herein  before  directed  to  be  served  on  him  ;  and  if  he  require 
it,  his  arraignment  shall  be  postponed  until  such  copy  be  given. 

Art.  496.  Whenever  any  translation  or  interpretation  is  required 
into,  or  from,  a  language  with  which  the  interpreter  is  unacquainted, 
or  in  the  absence  or  sickness  of  that  officer,  or  of  a  vacancy  in  the  office, 
the  court  may  appoint  a  proper  person  to  do  the  particular  service  re- 
quired, first  administering  an  oath  for  the  faithful  performance  of  the 
duty. 


CODE  OF  PROCEDURE.  553 


,  SECTION  III. 

Of  the  reporter. 

Art  497.  A  reporter  shall  be  appointed  by  the  governor  for  each 
court  having  criminal  jurisdiction,  who  shall  receive  such  emolument 
as  the  legislature  shall,  by  special  law,  direct :  he  shall  be  sworn  faith- 
fully to  perform  the  duties  of  his  office.  The  reporter  shall  not  prac- 
tise as  counsellor  or  attorney  in  any  criminal  cause  in  that  or  any  other 
court. 

Art.  498.  The  duty  of  the  reporter  shall  be  to  attend  at  all  the  sit- 
tings of  the  court  ;  to  take  notes  of  all  the  acts  of  accusation,  testimony, 
arguments,  verdicts,  judgments,  and  other  proceedings,  in  each  crimi- 
nal cause  that  shall  be  brought  before  such  court ;  to  perform  which 
duty  a  convenient  seat  shall  be  assigned  to  him  ;  and  from  these  notes 
he  shall  make  a  faithful  report. 

Art.  499.  Within  one  month  after  every  term  of  such  court,  or  of- 
tener  at  his  discretion,  he  shall  publish  such  reports  in  some  gazette 
printed  in  the  city  of  New  Orleans. 

Art.  500.  The  governor  is  authorized  1o  contract  with  the  proprie- 
tors of  a  gazette  for  the  publication  of  such  reports  ;  and  as  an  equiva- 
lent for  the  expense — all  judicial  orders,  directed  to  be  published  by  any 
court — all  advertisements  for  sheriff's  sales,  either  on  execution  or  for 
taxes — all  advertisements  directed  to  be  made  by  syndics — shall  be  pub- 
lished in  such  gazette,  at  the  usual  rates  now  allowed  by  the  court. 

Art.  501.  The  proceeding  in  the  causes  designated  or  presented  in  the 
chapter  next  following,  are  excepted  from  the  operation  of  the  three  last 
preceding  articles,  and  from  any  other  provision  in  the  system  of  penal 
law,  contrary  to  the  directions  of  the  said  chapter. 

Art.  502.  It  shall  also  be  the  duty  of  the  reporter  to  make  and  de- 
liver to  the  governor,  and  the  attorney  general,  once  in  every  three 
months,  a  return  of  names  of  all  the  persons  bailed  or  committed  to  pri- 
son by  any  court  or  magistrate  in  the  district,  designating,  in  separate 
columns,  the  offence  charged  ;  whether  bailed  or  committed,  and  whe- 
ther the  accusation  has  been  followed  up  by  an  indictment  or  informa- 
tion, and  whether  the  indictment  or  information  be  for  the  same  offence 
as  originally  charged  by  the  commitment;  whether  the  party  has  been 
discharged,  and  by  what  authority,  and  for  what  cause  ;  and  whether 
tried  and  acquitted,  or  convicted,  and  if  convicted,  of  what  offence;  and 
how  sentenced,  and  whether  sentence  has  been  executed,  and  how  :  de- 
signating also,  the  sex,  age,  place  of  nativity,  and  profession  or  trade, 
of  the  defendant ;  whether  he  could  write  or  read,  together  with  the 
dates  of  the  commitment  and  other  proceedings,  according  to  forms  to 
be  furnished  by  the  governor,  who  may  require  by  them  such  addi- 
tional information  as  may  show  the  prevalence  or  suppression  of  differ- 
ent offences,  and  the  general  operation  of  the  penal  laws. 

Art.  503.  Once  in  every  year  the  governor  shall  cause  an  abstract  to 
be  made  of  all  the  returns,  omitting  the  names  in  cases  of  misdemeanor, 
and  cause  the  same  to  be  published  ;  to  which  abstract  shall  be  added 
(from  the  return  directed  by  the  Code  of  Reform  and  Prison  Discipline 
to  be  made  by  the  keeper)  opposite  to  the  name  of  each  convict,  who 
3  U 


554  CODE  OF  PROCEDURE. 

has  been  committed  to  the  state  prison,  whether  he  is  still  in  custody, 
or  discharged,  and  how  ;  and  if  in  custody,  whether  at  labour,  or  in  soli- 
tude ;  and  if  at  labour,  how  employed. 


SECTION  IV. 

Of  the  sheiiff  and  other  officers  of  justice. 

Art.  504.  It  is  the  duty  of  the  sheriff  of  the  district  in  which  any 
court  of  criminal  jurisdiction  shall  sit,  to  attend  its  sessions  by  himself 
or  his  deputy  ;  arid  he,  or  such  deputy  who  acts  for  him,  shall  have  at 
least  two  other  deputies  constantly  in  attendance,  to  execute  the  orders 
of  the  court. 

Art.  505.  The  sheriff  shall  also  present  to  the  court,  at  the  opening 
of  its  session,  a  list  containing  the  names  of  all  the  constables  ;  and  the 
court  shall  also  designate  the  number  of  them  required  for  daily  attend- 
ance, who  shall  serve  in  rotation. 

Art.  606.  The  constables,  during  the  session  of  the  court,  shall  be 
under  the  direction  of  the  sheriff. 

Art.  507.  The  judge  may,  in  or  out  of  court,  whenever  he  shall  deem 
it  expedient  for  the  preservation  of  the  peace  or  the  execution  of  the  or- 
ders of  the  court,  appoint  any  number  of  special  constables  he  may 
think  proper,  who  shall  continue  in  office  during  the  time,  or  for  the  oc- 
casion, for  which  they  are  named. 

Art.  508.  The  sheriff's  officers  and  constables  may,  when  the  sher- 
iff or  the  court  deem  it  necessary,  be  armed  with  staves  ;  but  no  man, 
armed  in  any  other  manner,  shall  be  allowed  to  enter  the  hall  in  which 
the  court  is  sitting.  An  armed  guard  may,  with  the  approbation  of  the 
judge,  be  employed  by  the  sheriff,  to  guard  a  prisoner  to  and  from  the 
court  whenever  there  is  danger  of  a  rescue,  but  they  cannot  enter  with 
their  arms.  Nothing  in  this  article  shall  prevent  officers  in  the  army 
or  navy  from  entering  the  court  with  their  usual  side-arms. 

Art.  509.  The  crier  is  an  officer  of  justice  appointed  by  the  court ; 
his  duty  is  to  make  proclamations  for  opening  and  adjourning  the  court ; 
to  call  and  swear  the  jurors  and  witnesses  ;  to  preserve  silence  and  order 
in  court,  and  to  remove  those  who  disturb  its  proceedings  :  the  whole 
under  the  orders  of  the  court. 


CHAPTER  XV. 


Of  cases  in  which  the  publicity  of  legal  proceedings  may  be  limited. 

Art.  510.  In  all  prosecutions  for  the  following  offences,  that  is  to  say: 
for  assault,  accompanied  by  any  of  the  circumstances  set  forth  in  the  fourth 
article  of  the  fourth  section  of  the  first  chapter  nineteenth  title  and  sec- 
ond book  of  the  Code  of  Crimes  and  Punishments  ;  for  assault  with  intent 
to  ravish  ;  for  rape,  adultery,  offences  against  decency,  and  defamation 
implying  a  charge  of  either  of  the  offences.  During  the  examination  of 
witnesses,  previous  to  the  commitment  for  those  offences,  no  person 


CODE  OF  PROCEDURE.  555 

shall  be  present  but  the  magistrate  before  whom  the  complaint  shall  be 
made,  and  such  other  magistrates  as  he  may  request  to  aid  him  in  the 
examination,  the  public  prosecutor,  the  accused  and  his  counsel,  the  per- 
son complaining,  the  sheriff,  and  other  officers  of  justice  attending  on  the 
magistrate,  the  witnesses,  and  such  persons,  not  exceeding  ten  for  each 
party,  as  the  complainant  and  the  accused  may  desire  to  have  admitted. 

Art.  511.  On  the  trial,  the  persons  admitted  into  court  shall  be  res- 
tricted to  those  mentioned  in  the  preceding  article,  with  the  officers  of 
court,  and  the  jurors  sworn  to  try  the  cause. 

Art.  512.  In  making  the  report  of  any  such  trial,  the  reporter  shall  not 
give  the  details  of  the  evidence,  or  publish  the  names  of  the  witnesses. 

Art.  513.  Any  person  who  shall  publish  any  account  of  such  trial, 
containing  any  indecent  or  wanton  details,  shall  be  fined  not  exceeding 
two  hundred  dollars,  and  imprisoned  not  exceeding  sixty  days,  if  the 
account  be  substantially  true  ;  but  if  it  be  false,  the  punishment  shall  be 
doubled,  and  the  prosecution  and  trial  for  such  offence  shall  be  conduct- 
ed according  to  the  rules  laid  down  in  this  chapter. 


CHAPTER  XVI. 


Of  costs. 

Art.  514.  Until  the  system  by  which  magistrates  and  officers  of 
courts  and  of  justice  are  remunerated  for  their  services  by  fees,  shall 
be  abolished,  the  state  shall  pay  costs  in  all  cases  where  the  accused  is 
discharged  on  an  acquittal  or  for  want  of  prosecution. 

Art.  515.  The  payment  of  costs  is  not  to  be  awarded  in  all  cases 
on  conviction.  The  defendant  may,  in  some  cases,  be  exonerated  from 
them  altogether,  or  he  may  be  directed  to  pay  a  certain  sum  towards 
the  payment  of  costs.  This  is  at  the  discretion  of  the  court,  and  must 
be  exercised  so  as  to  proportion  the  amount  of  costs  to  the  punishment 
inflicted. 

Art.  516.  Costs  can  only  be  recovered  by  execution,  in  the  manner 
directed  for  the  recovery  of  a  fine  ;  and  no  one  shall  be  detained  in 
prison  to  enforce  the  payment  of  costs,  until  after  the  DISCUSSION  of  his 
property,  and  then  only  in  the  manner  directed  in  cases  of  fines. 


CHAPTER  XVII. 


Of  prescription  as  applied  to  offences. 

Art.  517.  There  is  no  prescription  against  prosecutions  for  any  of- 
fences other  than  those  especially  provided  for  in  this  chapter. 

Art.  518.  Prosecutions  for  all  misdemeanors,  except  public  offences, 
are  prescribed  by  the  lapse  of  three  years  after  the  commission  of  the 
offence. 

Art.  519.  Whenever  the  indictment  is  for  a  crime,  and  the  party  is 


556  CODE  OF  PROCEDURE. 

found  guilty  of  a  misdemeanor,  according  to  the  rules  hereinbefore 
established  in  the  chapter  of  Verdicts,  the  prescription  does  not  apply. 

Art.  520.  Prosecutions  for  injuries  to  reputation,  for  rape,  assault 
with  intent  to  ravish,  assault  aggravated  by  injury  to  pudicity,  are  pre- 
scribed by  one  year. 

Art.  521.  Prosecutions  for  an  attempt  to  commit  a  crime,  if  no  other 
offence  is  committed  by  the  attempt,  are  barred  by  one  year. 

Art.  522.   The  prescription  is  barred  in  two  cases  : 

1.  If  complaint  was  made  of  the  offence  within  the  time  prescribed, 
although  it  was  not  followed  by  further  prosecution,  if  the  offender  was 
either  unknown  or  could  not  be  found,  or  was  rescued,  or  escaped. 

2.  Where  the  party  injured,  or  the  person  whose  duty  it  was  to  pro- 
secute, was  absent  from  the  state,  or  was  prevented  by  force  or  impri- 
sonment, or  debarred  by  threats,  from  prosecuting  ;  in  cither  of  which 
cases  the  prescription  begins  from  the  time  the  party  shall  return,  or 
the  disability  shall  cease. 

Art.  523.  When  the  defendant  shall,  according  to  the  rules  herein- 
before prescribed,  except  to  the  form  of  any  act  of  accusation,  that  the 
time  at  which  the  offence  is  alleged  to  have  been  committed  is  beyond 
the  time  limited  by  the  prescription.  Such  exception  shall  not  be  al- 
lowed if  the  public  prosecutor  shall  undertake  to  show,  on  the  trial, 
either  of  the  circumstances  (designating  which)  that  are  in  the  last  pre- 
ceding article  declared  sufficient  to  rebut  the  prescription  ;  and  if  he 
shall  fail  so  to  do  on  the  trial,  or  to  show  that  the  offence  was  com- 
mitted within  the  time  limited,  the  defendant  must  be  acquitted. 

Art.  524.  Although  there  is  no  prescription  for  prosecutions  for  of- 
fences not  enumerated  in  this  chapter,  yet  provision  will  be  found  in 
the  Code  of  Evidence  to  check  any  attempts  to  oppress,  by  delaying 
the  accusation. 


TITLE  III. 


OF  THE  MODE  OF  PROCEDURE  IN  CERTAIN  CASES  NOT    IMMEDIATELY  CONNECTED 
WITH  PROSECUTIONS. 


CHAPTER  I. 


Of  inquests  on  dead  bodies. 

Art.  525.  Whenever  death  shall  be  caused  by  violence,  or  a  dead 
body  of  any  person  shall  be  found,  and  it  is  not  known  in  what  manner 
he  came  by  his  death,  notice  shall  be  given  to  the  coroner  of  the  parish, 
or,  in  his  absence  6r  inability  to  serve,  to  a  magistrate. 

Art.  526.  Immediately  after  receiving  such  notice,  it  shall  be  the 
duty  of  the  coroner,  or  magistrate,  to  summon  a  jury  of  inquest,  con- 
sisting of  eighteen  persons  qualified  to  serve  as  petit  jurors,  to  meet  at 
the  place  where  the  dead  body  is. 


CODE  OF  PROCEDURE.  557 

Art.  527.  Officers  of  justice,  and  deputies  whom  the  coroner  may 
appoint,  are  bound  to  execute  all  his  legal  warrants  for  summoning  the 
jury  of  inquest,  and  for  making  such  arrest  and  serving  such  orders  as 
he  is  authorized  to  make. 

Art.  528.  When  twelve  or  more  of  the  jury  are  assembled,  they 
shall  be  sworn,  in  the  form  hereinbefore  prescribed,  diligently  to  in- 
quire into  the  cause  and  manner  of  the  death  of  the  person  whose  body 
is  before  them,  and  to  make  a  true  inquisition  according  to  the  evidence 
offered  to  them,  or  arising  from  the  inspection  of  the  body. 

Art.  529.  A  surgeon  or  physician  shall  also  be  summoned  and  sworn, 
if  any  can  be  found  within  ten  miles,  as  a  witness,  who  shall,  in  the 
presence  of  the  jury,  inspect  the  body  and  give  a  professional  opinion 
as  to  the  cause  of  the  death. 

Art.  530.  The  coroner  shall  also  summon  and  examine  as  witnesses, 
on  oath,  all  such  persons  as  he  or  any  of  the  jury  shall  reasonably  sup- 
pose to  have  any  knowledge  of  facts  to  be  ascertained  by  the  inquest. 

Art.  531.  After  hearing  the  testimony,  the  jury  shall  determine 
when  and  in  what  manner,  and  by  the  act  of  whom  it  shall  appear  to 
them  that  the  deceased  came  to  his  death ;  and  when  a  majority  of  such 
jury  shall  agree  in  making  any  such  statement,  the  same  shall  be  re- 
duced to  writing  by  the  coroner  and  signed  by  the  jurors  agreeing  to 
the  same.  This  statement  is  called  the  coroner's  inquest. 

Art.  532.  If  by  the  inquest  it  shall  appear  that  any  DESIGNATED 
person  has  been  guilty  of  an  offence  in  producing  the  death  of  the  de- 
ceased, either  as  principal  or  accomplice,  the  coroner  shall  immediately 
issue  his  warrant  for  the  arrest  of  such  person,  which  shall  be  in  the 
form  of  warrants  of  the  like  nature  issued  by  magistrates,  and  shall  be 
executed  and  proceeded  on  in  the  same  manner. 

Art.  533.  The  coroner  has  power  to  summon  witnesses,  and  issue 
all  such  process  to  enforce  their  attendance  and  that  of  the  jury,  and  to 
punish  a  refusal  to  attend,  or  to  testify,  in  the  same  manner  as  a  magis- 
trate may  in  cases  submitted  to  his  jurisdiction.  He  has  also  the  same 
power  to  issue  a  search  warrant  for  any  article  necessary  to  the  investi- 
gation before  him,  that  is  by  this  Code  given  to  magistrates. 

Art.  534.  The  inquest,  together  with  any  evidence  that  may  have 
been  taken  by  the  coroner,  the  return  of  the  warrant,  shall  be  trans- 
mitted to  the  clerk  of  the  court  having  cognizance  of  the  offence  ;  and 
all  material  witnesses  shall  be  bound  over  by  the  coroner  to  appear  at 
such  court;  and  in  relation  to  the  arrest,  examination,  and  other  pro- 
ceedings, after  an  inquisition,  the  duties  of  the  coroner  and  the  officers 
of  justice  shall  be  the  same  as  those  prescribed  generally  by  this  Code 
in  cases  of  warrants  of  arrest  issued  by  magistrates. 


CHAPTER  II. 


Of  the  disinter ment  and  dissection  of  dead  bodies  in  cases  of  sus- 
pected murders. 

Art.  535.  Whenever  a  FAMILY-MEETING  of  the  relations  or  friends 
of  the  deceased,  convened  according  to  law,  shall  determine  that  it  is 


558  CODE  OF  PROCEDURE. 

expedient  to  make  an  examination  of  the  dead  body  of  any  person  who 
has  been  already  interred,  in  order  to  discover  the  cause  of  his  death, 
and  shall  make  application  to  a  judge  for  that  effect ;  or  whenever  the 
judge  shall  himself  deem  it  necessary,  in  consequence  of  evidence  pre- 
sented to  him,  he  shall  appoint  two  surgeons  to  perform  any  chirurgical 
operation  that  may  be  necessary,  and  shall  issue  his  order  to  the  sheriff 
to  have  the  body  disinterred  and  examined. 

Art.  536.  The  surgeons  shall  make  a  VERBAL  PROCESS  of  the  whole 
professional  proceeding,  which  they  shall  sign,  and  the  sheriff  shall  4feo 
make  minutes  of  the  whole  of  his  proceeding,  which  shall  be  signeoby 
him,  and  at  least  three  persons  who  were  present  at  the  operation. 

Art.  537.  The  VERBAL  PROCESS  of  the  surgeons  and  the  minutes  of 
the  sheriff  shall  be  returned  to  the  judge  who  issued  the  order,  and 
may  serve  as  corroborating  testimony  to  found  a  warrant  of  arrest,  but 
shall  not  be  evidence  on  the  trial. 

Art.  538.  The  family-meeting  may,  in  like  manner,  apply  for  the 
examination  of  the  dead  body  before  interment,  and  when  the  order  is 
granted,  the  same  proceedings  as  are  before  directed  shall  take  place. 


CHAPTER  III. 


Of  the  proceedings  in  case  of  property  found,  where  the  owner  is 

unknown. 

Art.  539.  When  any  one  shall  come  by  finding  to  the  possession  of 
any  personal  property,  greater  in  value  than  twenty  dollars,  of  which 
he  has  no  reason  to  believe  any  designated  person  to  be  the  owner,  he 
shall  be  deemed  to  have  concealed  the  same,  and  to  have  appropriated 
it  to  his  own  use,  so  as  to  incur  the  penalties  directed  by  the  ar- 

ticle of  the  Code  of  Crimes  and  Punishments,  unless  he  shall  pursue 
the  directions  of  this  chapter. 

Art.  540.  He  must  within  three  days  give  to  the  parish  judge  a 
written  notice,  containing  a  description  of  the  property  found,  with  its 
marks  (if  any),  and  the  time  and  place  of  finding  the  same. 

Art.  541.  If  the  property  be  above  the  value  of  one  hundred  dollars, 
he  must  either  deliver  it  to  the  sheriff  of  the  parish,  or  give  such  se- 
curity as  the  judge  shall  approve,  to  restore  the  same  if  legally  claimed 
within  six  months. 

Art.  542.  If  it  be  of  greater  value  than  three  hundred  dollars,  con- 
sisting of  mdney,  jewels,  gold  or  silver  bullion,  notes  or  other  instru- 
ments in  writing,  or  any  article  of  small  bulk,  he  shall  deposit  the  same 
in  some  bank,  if  there  be  one  within  five  miles,  which  will  take 
charge  of  the  same  as  a  deposit  for  safe  keeping — if  there  be  no  such 
bank  within  that  distance,  it  shall  be  deposited  with  the  parish  judge, 
unless  the  finder  give  the  security  mentioned  in  the  last  preceding 
article. 

Art.  543.  A  particular  inventory  of  the  property  must  be  made  by 
the  parish  judge  and  recorded  in  his  office. 

Art.  544.  Within  eight  days  after  the  report  made  to  the  parish 
judge,  he  shall  cause  an  advertisement  of  the  finding,  describing  the 


CODE  OF  PROCEDURE.  559 

property  particularly,  to  be  published,  with  a  notice  to  the  owner  to 
claim  the  same  within  six  months  from  the  time  of  finding;  which 
advertisement  shall  be  continued  once  every  month  during  the  six 
months. 

Art.  545.  If  the  owner  appear  within  the  six  months,  and  prove  his 
property  to  the  satisfaction  of  the  judge,  it  shall  be  restored  to  him  on 
his  paying  all  the  costs  of  preserving  the  same,  all  the  expenses  attend- 
ing the  procedure  decreed  by  this  chapter,  and  ten  per  cent  on  the 
value  of  the  property  to  the  finder. 

Art.  546.  This  chapter  applies  to  property  found  stranded  or  drift- 
ing in  any  lake  or  stream  of  water  within  the  state,  except  only  that, 
in  this  last  case,  the  owner  shall  be  bound  to  pay  a  reasonable  salvage, 
proportioned  to  the  trouble  and  risk  of  saving  and  securing  the  pro- 
perty, over  and  above  the  ten  per  cent  on  the  value  ;  which  salvage 
shall  be  determined  by  the  parish  judge. 

Art.  547.  If  no  owner  appear  to  claim  the  property  within  six 
months,  it  shall  be  delivered  to  the  finder,  if  not  in  his  possession,  and 
if  it  be,  his  bonds  shall  be  cancelled,  and  he  shall  not  be  criminally 
liable  for  any  use  he  may  make  of  the  same. 


CHAPTER  IV. 


Of  the  mode  of  proceeding  in  cases  of  vagrancy. 

'  Art.  54S.  A  vagrant  is  one  who,  having  no  visible  means  of  sub- 
sistence, lives  in  idleness,  or  in  the  practice  of  drinking,  or  gaming, 
and  who,  by  the  whole  of  his  conduct  and  character,  gives  just  reason 
to  believe  that  he  gains  his  subsistence  by  illegal  means. 

Art.  549.  On  the  complaint  of  three  householders  to  a  magistrate, 
stating,  that  they  have  reason  to  believe,  and  detailing  those  reasons, 
and  that  they  do  believe  that  any  designated  individual  comes  within 
the  description  abovementioned,  the  magistrate  shall  issue  his  warrant 
to  bring  the  person  before  him,  and  shall  require  him  to  give  an  ac- 
count of  the  means  by  which  he  gains  his  living. 

Art.  550.  The  account  required  by  the  last  article  may,  if  the  party 
implicated  desire  it,  be  given  to  the  magistrate  in  private,  but  it  must 
be  on  oath,  and  supported  by  at  least  one  credible  witness  ;  and  if  such 
account  show  legal  means  of  subsistence,  to  the  satisfaction  of  the  ma- 
gistrate, the  party  shall  be  dismissed.  But  if  the  party  refuse  to  render 
any  account,  or  render  one  not  satisfactory  to  the  magistrate,  he  shall 
be  required  to  report  himself  to  the  magistrate,  and  to  show,  within 
three  days,  that  he  has  adopted  some  regular  means  of  livelihood,  or  to 
leave  the  district,  or  to  give  security  for  his  good  behaviour. 

Art.  551.  If  the  party  fail  in  performing  one  of  the  conditions  pre- 
scribed by  the  last  section,  the  magistrate  shall  issue  his  warrant  to 
send  him  to  the  HOUSE  OF  INDUSTRY,  there  to  be  employed  for  sixty 
days,  or  until  he  shall  find  security  for  his  good  behaviour,  or  that  he 
will  leave  the  state  and  not  return  within  two  years. 

Art.  552.  If  after  his  discharge  the  party  shall  again  be  found  in  a 
state  of  vagrancy,  either  in  the  same  or  in  any  other  district  in  the 


560  CODE  OF  PROCEDURE. 

state,  he  shall,  after  the  like  inquiry,  be  sent  to  the  house  of  industry 
for  six  months  ;  and  the  same  process  shall  be  repeated  as  often  as  the 
same  kind  of  life  shall  be  resumed. 

Art.  553.  No  person  shall  be  deemed  a  vagrant,  under  the  provisions 
of  this  chapter,  who,  from  bodily  infirmity,  or  infancy,  or  old  age,  is 
unable  to  gain  a  livelihood  by  labour.  Persons  of  this  description,  if 
without  the  means  of  subsistence,  are  under  the  care  of  the  police  of 
the  parish  to  which  they  belong. 


CHAPTER  V. 


Of  the  mode  of  proceeding  in  cases  nf  alleged  insanity. 

Art.  554.  Insanity  alleged  on  the  trial  to  have  existed  at  the  time  of 
committing  the  offence,  must  be  determined  like  any  other  ground  of 
defence  by  the  jury  impannelled  for  the  trial  of  the  cause  ;  but  if  the 
defendant  be  acquitted  on  that  ground,  it  should  be  specially  so  found, 
that  the  court  may  make  order  for  his  safe  custody,  according  to  the 
provisions  of  the  Code  of  Crimes  and  Punishments. 

Art.  555.  If  insanity  be  alleged,  or  observed  by  the  court,  to  exist 
at  any  other  stage  of  the  proceeding,  it  must  be  inquired  of  by  a  jury 
specially  sworn  for  that  purpose,  who  shall  be  drawn  from  the  panel  of 
petit  jurors  in  the  same  manner  as  they  are  drawn  for  the  trial  of  causes. 

Art.  556.  If  the  insanity  be  alleged  or  discovered  before  the  trial, 
or  after  conviction  and  befoie  judgment,  the  question  to  be  submitted 
to  the  jury  shall,  in  the  first  case,  be,  whether  the  defendant  is  of  a 
sufficiently  sane  mind  to  make  his  defence,  or  give  instructions  for  it ;  in 
the  second  case  it  shall  be,  whether  he  have  sufficient  sanity  of  mind  to 
show  cause  against  the  judgment,  and  take  those  other  measures  he  is 
allowed  to  take  for  the  diminution  of  the  punishment. 

Art.  557.  If  the  insanity  be  alleged  after  judgment,  the  inquiry 
shall  be,  if  it  exist  in  such  a  degree  as  to  make  him  dangerous  to  others 
or  unconscious  of  the  nature  and  consequences  of  his  offence. 

Art.  558.  Whenever,  in  any  of  the  cases  mentioned  in  the  three 
last  preceding  articles,  the  insanity  of  the  defendant  shall  be  alleged, 
or  shall  be  observed  by  the  court,  they  shall  name  a  physician  to  attend 
him,  in  order  that  he  may  be  examined  as  a  witness  before  the  jury. 

Art.  559.  Counsel  shall  be  assigned  to  the  defendant  on  such  inquiry 
if  none  have  before  been  employed  or  assigned. 

Art.  560.  The  jury  may  interrogate  the  defendant  on  such  inquiry. 


CHAPTER  VI. 


Of  the  mode  of  proceeding  in  trials  for  adultery. 

Art.  561.   In  order  to  avoid  collusive  attempts  between  the  husband 
and  a  pretended  adulterer  to  obtain  a  divorce,  to  the  injury  of  the  wife  ; 


CODE  OF  PROCEDURE.  561 

or  between  the  husband  and  wife,  to  injure  an  innocent  person,  charged 
as  the  adulterer;  the  Code  of  Crimes  and  Punishments  has  provided, 
that  prosecutions  for  adultery  shall  be  joint  against  the  wife  and  the 
supposed  adulterer  (if  he  be  alive);  and  that  there  can  be  no  conviction 
of  the  one  without  the  other,  under  the  modifications  to  be  contained 
in  this  code  :  these  are  the  following  : 

1.  If  the  defendant,  who  is  charged  with  being  the  adulterer,  shall 
have  been  either  summoned  or  arrested,  but  he  should  not  appear,  an 
attorney   shall    be    named  for   his  defence,   who  shall  enter  a  plea  of 
"  not  guilty"  for  him,  and  the  trial  shall  proceed  in  his  absence. 

2.  If  he  be  alive,  but  shall  have  left  the  state  before  the  prosecution 
is  commenced,  a  warant  or  citation  shall  issue  against  him,  and  be  re- 
newed, from  time  to  time,  for  six  months,  until  it  shall  be  served,  and 
until  the  trial  shall  actually  take  place.     If  he  be  not  found,  the  trial 
may  proceed,  after  the  expiration  of  the  six  months,  against  the  wife 
alone. 


CHAPTER  VII. 

Of  I  he  application  of  moneys  collected  for  fines,  and  of  compensa- 
tions for  services  to  prosecutor,  and  for  losses  incurred  by  inno- 
cent defendants. 

Art.  562.  The  mode  in  which  fines  are  to  be  collected,  is  prescribed 
in  the  chapter  of  punishments  in  the  Code  of  Crimes  and  Punishments. 

Art.  563.  Sheriffs,  coroners,  and  the  marshal  of  the  city  court  of  the 
city  of  New  Orleans,  must,  once  in  every  three  months,  render  to  the 
treasurer  of  the  state,  an  account  of  all  fines  either  of  them  may  have 
received  prior  to  that  time  ;  or  if  they  have  received  none,  make  a  re- 
turn to  that  effect,  in  writing,  signed  by  them  respectively. 

Art.  564.  At  the  time  of  rendering  such  account,  the  balance  in  the 
hands  of  the  officer  rendering  it  shall  be  paid  to  the  treasurer  of  the 
state,  who  shall  carry  the  same  to  account  of  a  fund,  called  the  "  com- 
pensation fund" — which  shall  be  applied,  first,  to  the  payment  of  war- 
rants for  recompense  drawn  by  the  governor,  or  by  the  judge,  and 
public  prosecutor,  in  cases  authorized  by  the  second  chapter,  first 
title,  first  book  of  this  Code  ;  secondly,  to  such  other  uses  as  the  legis- 
lature may  direct. 

Art.  565.  If  any  sheriff,  coroner  or  marshal  shall  neglect  or  refuse 
to  render  such  account,  and  to  pay  the  balance  that  may  be  due  thereon, 
or  to  make  such  return,  he  shall  forfeit  a  sum  of  fifty  dollars. 

Art.  566.  It  is  hereby  made  the  duty  of  the  treasurer  to  cause  pro- 
secutions to  be  commenced  for  the  offences  against  this  chapter  ;  and 
also,  to  file  petitions  in  a  court  of  competent  jurisdiction  for  an  account 
of  fines  that  may  have  been  received  ;  and  in  such  suits  the  defendants 
shall  pay  costs,  although  it  may  appear  that  no  money  was  due  to  the 
state  ;  unless  the  defendant  can  show,  that  he  had  made  the  returns, 
required  by  this  chapter,  before  the  commencement  of  the  suit. 

Art.  567.  Suspicion  of  guilt  sometimes  subjects  the  innocent  to  the 
vexatious  expense  and  privation  of  liberty  incident  to  the  measures 
3  V 


562  CODE  OF  PROCEDURE. 

preparatory  to  the  trial,  by  which  their  innocence  is  ascertained.  Jus- 
tice requires  that  such  persons  should  be  compensated  by  the  public, 
because  the  loss  and  inconvenience  was  caused  by  its  officers,  and  in 
attempting  to  secure  its  peace  and  safety.  To  do  full  justice  in  the 
few  cases  where  it  will  be  found  due,  would  expose  the  treasury  to 
petitious  demand  in  so  many  others,  that  the  law  can  only  give  relief 
in  such  a  manner  as  to  aid  the  more  needy  class  of  sufferers,  while  it 
offers  no  temptation  to  fraudulent  combinations : 

Art.  568.  Therefore,  whenever  the  judge  who,  before  trial,  shall 
discharge  a  person  who  has  been  committed,  or  bailed,  for  any  offence — 
or  whenever  the  jury,  who  shall  acquit  any  defendant — shall  certify, 
that  he  did  not,  by  any  improper  conduct,  give  reasonable  ground  for 
suspicion  that  he  had  committed  the  offence,  he  shall  be  entitled  to  such 
compensation  for  the  losses  he  has  sustained  by  reason  of  the  prosecu- 
tion, as  the  judge  shall  think  reasonable  ;  but  such  compensation  shall 
in  no  case  exceed  an  amount  of  emoluments  which  he  might  have  made 
during  the  time  that  he  was  confined,  or  necessarily  employed  in  his 
defence,  to  be  ascertained  according  to  the  following  circumstances  : 

1.  If  the  defendant  have  no  trade  or  profession,  the  compensation 
shall  be  calculated  according  to  the  wages  of  day-labourers. 

2.  If  he  be  a  mechanic,  the  average  rate  of  wages  for  hired  work- 
men of  his  trade  shall  be  the  measure,  without  any  regard  to  the  parti- 
cular skill  of  the  defendant. 

3.  If  the  defendant  pursue  any  other  calling  or  profession,  the  com- 
pensation shall  not  exceed  twice  the  amount  which  could  be  allowed  to 
a  mechanic. 

Art.  569.  The  sum  allowed  shall  be  paid  by  the  treasurer  'out  of 
the  compensation  fund,  on  the  judge's  warrant,  countersigned  by  the 
clerk  of  the  court,  to  the  person  in  whose  favour  the  allowance  is 
made. 

Art.  570.  In  such  cases  the  acquittal  shall  always  be  published,  and 
the  expenses  paid  by  a  similar  draft  on  the  same  fund. 


GENERAL  PROVISIONS. 


Art.  571.  No  omission  of  any  matter  of  form,  prescribed  by  this 
system,  nor  any  departure  from  the  forms  given  for  proceeding  under 
it,  shall  render  the  proceeding  void,  unless  it  be  so  specially  provi- 
ded ;  or,  unless  the  departure  from  the  form  has  caused  some  injury 
to  the  party  complaining  of  it. 

Art.  572.  Where  a  particular  provision  is  made  in  any  part  of  this 
system,  contrary  to  a  general  provision,  the  particular  provision  must 
be  observed. 

Art.  573.  All  offences  which  are  created  by  the  Code  of  Proce- 
dure, or  the  Code  of  Reform  and  Prison  Discipline,  shall  be  tried  in 
the  same  manner  with  those  which  are  created  by  the  Code  of  Crimes 
and  Punishments. 

Art.  574.  Whenever  a  notice  or  interval  of  a  certain  number  of 
days  is  directed  to  be  given  or  to  elapse,  three  whole  days,  exclusive 
of  the  two  terms  referred  to,  must  intervene,  unless  the  contrary  be 
expressed. 


BOOK  III. 


CONTAINING  THE   FORMS  TO  BE   USED  IN  ALL  THE  JUDICIAL  PRO- 
CEEDINGS PRESCRIBED  OR  AUTHORIZED  BY  THIS  CODE. 


TITLE  I. 


OF  THE  FORMS   TO  BE    USED  IN   THE    PROCEEDINGS   AUTHORIZED    BY  THE    FIRST 
BOOK,  TITLE  FIRST,  FOR  THE  PREVENTION  OF  OFFENCES. 


CHAPTER  I. 


General  provisions . 

Art.  575.  Where  the  forms  given  in  this  book  are  filled  up,  the 
parts  within  brackets  are  to  be  changed  according  to  the  circum- 
stances ;  the  real  names  are  to  be  substituted  for  the  letters  used  to 
represent  them  in  the  forms,  and  the  real  dates  for  the  blanks  or  the 
fictitious  dates  used  in  the  forms. 

Art.  576.  The  certificate  of  the  attestation  of  the  magistrate  to  affi- 
davits, the  seals  to  writs,  and  the  signatures  of  parties,  clerks  and  ma- 
gistrates, are  omitted  in  most  of  these  forms.  The  cases  in  which 
they  are  necessary,  in  practice,  are  either  declared  by  the  law  on  the 
subject,  or  result  from  the  nature  of  the  instrument. 

Art.  577.  Where  the  beginning  or  conclusion  of  any  form  has  been 
given  before,  it  is  omitted  in  the  subsequent  forms  of  the  same  nature. 
The  part  of  the  form  omitted  in  the  beginning  of  any  precedent,  is  to 
be  supplied  by  copying  the  formal  part  that  had  before  been  given, 
down  to  the  recurrence  of  the  word  with  which  the  new  form  begins. 
Thus,  in  the  precedents  of  an  indictment,  the  formal  part  must  be 
copied  in  each  case  down  to  the  word  "  did,"  with  which  word  some 
of  the  forms,  given  for  the  different  officers,  begin  in  the  subsequent 
precedents  ;  or  to  the  word  "  that,"  with  which  others  begin.  The 
formal  conclusion  is  supplied  by  "&c." 


564  CODE  OF  PROCEDURE. 


CHAPTER  II. 


Of  the  forms  to  be  used  in  the  proceedings  under  the  third  chapter 
of  the  title  and  book  aforesaid. 

Art.  578.  The  honorary  certificate,  directed  to  be  granted  by  the 
article,  shall  be  in  the  following  form  : 

"  State  of  Louisiana — certificate  of  merit. 

l(  A.  B.  having  [here  insert  the  act  with  such  circumstances  as  in 
the  opinion  of  the  court  rendered  it  worthy  of  recompense],  the  crim- 
inal court  of  said  state  [reciting  the  style  of  the  court]  have,  according 
to  the  laws  of  the  said  state,  caused  this  certificate  to  be  made  out, 
under  their  seal,  to  record  the  merit  of  his  conduct,  and  to  have  the 
other  effects  provided  for  by  law.  Witness,  J.  T.  judge  of  the  said 
court,  this  day  of  in  the  year  ." 

Art.  579.  The  certificate  directed  by  the  article,  to  entitle 

the  person  giving   information  of  an  offence  to  the  reward  thereby 
directed,  shall  be  as  follows  : 

"  We  certify,  that  A.  B.  gave  the  first  information  which  led  to 
the  conviction  of  C.  D.  of  the  offence  of  [here  insert  the  description  of 
offence]  ;  and  that,  pursuant  to  the  directions  of  the  Code  of  Criminal 
Procedure,  he  is  entitled  to  receive  from  the  treasurer  of  the  state, 
out  of  the  compensation  fund,  the  sum  of  fifty  dollars.  Dated  the 
day  of  in  the  year  ." 

Art.  580.  The  several  proceedings  for  the  prevention  of  offences  by 
the  intervention  of  officers  of  justice,  which  are  authorized  by  the 
third  chapter  of  the  title  and  book  mentioned  in  the  title  of  this 
chapter,  shall  be  according  to  the  following  forms  : 

1.  The  form  of  an  affidavit  required  by  the  first  article  of  that  chap- 
ter : 

"I,  A.  B.,  do  hereby  declare,  that  I  do  fear  that  C.  D.  intends  to 
commit  an  offence  against  my  person  [or  property,  designating  which] 
by  [designating  the  act  which  is  apprehended]  ;  and  that  I  have  just 
reason  for  this  fear,  because  [here  insert  the  circumstances  which 
cause  the  apprehension.]" 

2.  Form  of  the  warrant : 

"To  H.  H.  one  of  the  constables,"  &c. 

"Whereas,  A.  B.  hath  made  oath  before  me,  C.  D.  [designating 
the  office  of  the  magistrate],  that  he  has  just  reason  to  fear  and  does 
fear,  that  E.  F.  intends  to  [here  insert  the  nature  of  the  offence]  :  You 
are,  therefore,  ordered  to  arrest  the  said  E.  F.,  and  bring  him  before 
me  to  answer  the  said  allegation,  and  to  be  dealt  with  according  to 
law.  Given  under  my  hand,  this  day  of  in  the 

year  ." 

3.  The  form  of  the  bond  : 

"  We,  E.  F.  and  G.  H.,  acknowledge  ourselves  bound  in  solido  to 
the  state  of  Louisiana  in  the  sum  of  to  be  paid  by 

us,  or  our  heirs,  if  the  said  C.  D.  shall  commit  any  offence  against 
[the  person]  of  A.  B.  within  the  term  of  one  year." 


CODE  OF  PROCEDURE.  565 

4.  The  form  of  commitment,  if  the  accused  do  not  find  security. 
"To  the  sheriff  of  the  parish,  &c.     By  C.  D.  [one  of  the  justices,  &c.] 

"  Keep  in  safe  custody,  until  he  shall  be  discharged  by  law,  E.  F. 
herewith  delivered  to  you,  charged,  on  the  oath  of  A.   B.,  with  an 
intent  to  [here  insert  the  charge].     Witness  my  hand,  this 
day  of  in  the  year  ." 

Art.  581.  Any  one  committed  by  virtue  of  such  commitment,  may 
be  brought  up  by  order  of  the  magistrate  who  committed  him  when- 
ever he  finds  security,  .and  on  executing  the  bond  aforesaid  shall  be 
discharged. 

5.  Warrant  for  arrest,  on  the  view  of  the  magistrate,  under  the 
article. 

"To  H.  H.  one  of  the  constables,"  &c. 

"Whereas,  E.  F.  in  the  presence  and  view  of  me,  C.  D.,  one  of  the 
justices  [insert  his  style  of  office],  did  commit  illegal  violence  on  the 
person  of  A.  B. :  You  are,  therefore,  commanded  to  arrest  the  said 
E.  F.,  and  bring  him  before  me  to  answer  for  the  said  offence,  and  to 
be  dealt  with  according  to  law.  Given  under  my  hand  this  day 

of  in  the  year  ." 

6.  Application  for  a  summons,  in  case  of  an  intended  libel. 
"To  C.  D.  one  of  the  justices,"  &c. 

"A.  B.  complains  that  E.  F.  as  he  is  informed  and  believes,  is  now 
printing  a  libel  against  him,  which  he  intends  to  publish  [or  that  he  has 
written  and  intends  to  print,  or  continues  to  sell  and  circulate,  some 
such  libel,  or  some  such  publication  as  is  forbidden  by  the  Penal  Code, 
as  the  case  may  be] ;  he  therefore  prays,  that  the  said  E.  F.  may  be 
summoned,  for  admonition,  according  to  law." 

7.  Summons  on  the  above  complaint. 
"To  I.  K.  one  of  the  constables,"  &c. 

"Summon  E.  F.  to  appear  before  me,  [one  of  the  justices,  &c.]  on 
the  day  of  next,  at  o'clock  in  the  morning,  at 

my  office,  to  hear  the  complaint  of  A.  B.  against  him,  for  intending  to 
publish  [or  for  continuing  to  circulate,  &c.,  as  the  case  may  be]  a  libel 
against  him  [or  other  publication  forbidden  by  the  Code  of  Crimes  and 
Punishments,  as  the  case  may  be].     Witness  my  hand,  this 
day  of  C.  D." 

Art.  532.  If  the  person  summoned  do  not  appear,  and  the  officer  to 
whom  it  was  directed  shall  return,  that  it  was  duly  served,  such  sum- 
mons and  return  shall  have  the  same  effect  as  to  the  punishment,  in 
case  of  conviction,  that  the  admonition  would  have  had. 


CHAPTER  III. 


Form  of  the  proceeding  authorized  by  the  fourth  chapter  respecting 

search  warrants. 

Art.  583.  The  forms  to  be  used  for  proceedings  authorized  by  this 
chapter  are  as  follows  : 

1.  Affidavit  for  procuring  a  search  warrant  for  stolen  goods,  or  goods 
taken  on  false  pretences  or  fraud  : 


566  CODE  OF  PROCEDURE. 


"A.  B.  being  duly  sworn  before  me,  C.  D.  one  of  the  justices,  &c. 
[insert  the  office  of  the  magistrate],  doth  depose,  that  the  following 
property,  viz.  [describing  it],  the  property  of  [insert  the  name  of  the 
owner],  has  been  stolen,  [or  has  been  taken  by  false  pretences,  or  has 
been  forced  and  fraudulently  appropriated,  as  the  case  may  be],  in  the 
parish  of  ;  and  that  the  deponent  believes,  that  the  said  property 

is  concealed  in  the  house  of  I.  K.,  [or,  as  the  case  may  be,  in  a  par- 
ticular chamber,  or  in  a  barn,  or  other  place,  describing  it],  in  the  said 
parish;  and  he  so  believes  because  [here  state  the  circumstances  on  which 
the  belief  is  founded.  ] 

2.  Affidavit  for  procuring  a  search  warrant  for  seizing  forged  instru- 
ments in  writing,  or  counterfeit  coin,  or  the  instruments  and  materials 
for  making  them. 

"A.  B.  being  duly  sworn  before  me,  C.  D.  [insert  the  magistrate's 
office],  doth  depose,  that  he  believes  that  certain  forged  bank  notes  [or 
counterfeit  coin,  or  instruments,  or  materials  for  making  them,  as  the 
case  may  be]  are  concealed  in  the  house  of  [describing  the  place]  with 
the  fraudulent  intent  of  passing  the  same  [if  it  be  bank  notes  or  coin] 
or  of  [employing  the  said  instruments  or  materials  in  committing  the 
crime  of  forgery  or  counterfeiting,  as  the  case  may  be];  and  he  also 
believes  [state  the  circumstances  on  which  he  founds  his  belief.  ] 

3.  Affidavit  for  procuring  a  search  warrant  for  arms  and  munitions 
prepared  for  insurrection  or  riot. 

"A.  B.  being  duly  sworn  before  me,  C.  D.  [insert  the  magistrate's 
office]  doth  depose,  that  he  believes  that  certain  arms  [or  munitions,  as 
the  case  may  be]  consisting  of  [describe  of  what  kind  the  arms  or 
munitions  are],  are  concealed  in  [describe  the  place] ;  and  that  they  are 
intended  to  be  used  for  the  purposes  of  a  riot  [or  insurrection,  as  the 
case  may  be],  which  he  also  believes  certain  persons  have  conspired  to 
make  [or  have  actually  made,  if  such  be  the  case] ;  and  that  his  reasons 
for  believing  as  aforesaid  are  [insert  the  reasons  for  believing  in  the 
insurrection,  or  riot,  or  the  conspiracy,  to  effect  them,  as  well  as  the 
concealment  of  the  arms  for  that  purpose.] 

4.  Affidavit  for  a  search  warrant  for  some  article,  the  production  of 
which  may  be  necessary  on  a  trial : 

"A.  B.  being  duly  sworn,  &c.  [as  before]  doth  depose,  that  on  the 
trial  of  E.  F.  now  under  examination,  [or  lately  committed  or  bailed, 
as  the  case  may  be],  on  an  accusation  of  [state  the  offence]  a  certain 
silver-mounted  pistol  [or  any  other  article,  describing  it],  will,  as  he 
believes,  be  necessary  to  be  produced,  and  that  the  same,  as  he  believes, 
is  now  in  the  house  occupied  by  G.  H.  situate  in  [describing  the  place]; 
and  that  his  reasons  for  believing  that  the  production  of  the  said  article 
will  be  necessary  are  [here  state  the  circumstances.  ] 

5.  Warrant  to  search  for  goods  stolen,  taken  under  false  pretences, 
or  forced  : 

"To  the  sheriff  of  the  parish  [or  to  A.  B.  one  of  the  constables 

of  the  parish  of  .] 

"  Whereas,  affidavit  hath  this  day  been  made  before  me,  C.  D.  one  of 
the  justices,  &c.  [insert  the  office  of  the  magistrate]  by  A.  B.  that  cer- 
tain property  belonging  to  was  stolen  [or  obtained  by  false  pre- 
tences from  him,  or  had  been  fraudulently  appropriated,  as  the  case 
may  be,]  and  that  he  had  good  reason  to  believe  and  did  believe,  that 
the  said  property  was  concealed  in  the  house  of  situate  in 


CODE  OF  PROCEDURE.  567 

[or  other  place,  describing  it] :  You  are  therefore  required,  without 
delay,  to  make  search  in  the  said  house  [or  other  place]  in  the  day- 
time for  the  said  property;  and  if  you  find  the  same,  or  any  part  thereof, 
that  you  bring  the  same,  with  the  person  in  whose  custody  the  same 
was  found,  before  me  without  delay,  to  be  examined  and  dealt  with 
according  to  law.  Given  under  my  hand  and  seal,  this  day  of 

in  the  year 

6.  Search  warrant  for  seizing  forged  instruments  in   writing,  or 
counterfeit  coin,  or  the  instruments  and  materials  for  making  them. 

"  To  the  Sheriff,  &c. 

"Whereas,  an  affidavit  has  been  made,  &c.  [as  in  the  preceding 
form]  that  certain  forged  bank  bills  [or  counterfeit  coin,  or  instruments 
or  materials  for  making  forged  bills  or  counterfeit  coin,  as  the  case  may 
be,  reciting  the  affidavit],  are  concealed,  &c.  [as  in  the  affidavit,  de- 
scribing the  place  particularly],  with  the  fraudulent  intent  of  passing 
the  said  bills  or  coin  [or  employing  the  said  materials  or  instruments 
in  committing  the  crime  of  forgery  or  counterfeiting,  as  the  same  may 
be  stated  in  the  affidavit]:  You  are  therefore  required,"  &c.  as  in  the 
last  form. 

7.  Search  warrant  for  seizing  arms  and  munitions  prepared  for  in- 
surrection or  riot. 

"  To  the  Sheriff,  &c. 

"  Whereas,  &c.  [the  direction  and  recital  as  in  the  preceding  forms] 
affidavit  has  been  made  before  me,  &c.  by  A.  B.  stating  that  he  believes, 
and  has  good  reason  to  believe,  there  are  certain  arms  [or  munitions, 
describing  them  as  in  the  affidavit]  are  concealed  in  [describing  the 
place  as  in  the  affidavit],  and  that  they  are  intended  to  be  used  for  the 
purposes  of  an  insurrection,  [or  riot,  as  the  case  may  be]  which  certain 
persons  have  conspired  to  make  [or  have  made]  as  he  also  believes, 
and  has  good  reason  to  believe  :  You  are  therefore  required,"  &c.  as  in 
the  preceding  forms. 


TITLE  II. 


OF  THE    FORMS   TO  BE  USED    IN   THE    PROCEEDINGS   AUTHORIZED    BY  THE    FIRST 
BOOK,  TITLE  SECOND,  FOR  SUPPRESSING  PERMANENT  OFFENCES. 


CHAPTER  I. 


Forms  of  proceeding  to  be  used  for  giving  effect  to  the  directions 
for  suppressing  permanent  offences  against  public  tranquillity, 
public  safety,  public  health,  public  property,  morals,  and  de- 
cency, and  reputation. 

Art.  584.  Affidavit  of  the  existence  of  an  unlawful  assembly  or  riot : 
"A.  B.  and  C.  D.  of  the  parish  of  [New  Orleans],  being  sworn  say, 


568  CODE  OF  PROCEDURE. 

that  E.  F.,  G.  H.  and  I.  K.  and  others  to  the  deponent  unknown,  to 
the  number  of  more  than  twenty,  are  now  assembled  in  [the  public 
square  of  the  city  of  New  Orleans]  with  the  intent  to  aid  each  other 
in  violently  and  illegally  [rescuing  from  the  sheriff  one  J.  S.  who  has 
been  legally  committed  on  an  accusation  of  murder,  which  intent  was 
openly  expressed  by  numbers  of  the  said  assembly  in  the  presence  of 
these  deponents."] 

Art.  585.  In  case  of  a  riot  this  clause  is  to  be  added,  "  and  that  the 
said  persons  have  begun  to  execute  their  purpose  [by  assaulting  and 
beating  the  officers  of  justice  who  have  the  custody  of  the  said  J.  S."] 

Art.  586.  Proclamation  and  order  of  a  magistrate  for  the  dispersion 
of  an  unlawful  assembly  or  a  riot. 

The  magistrate  shall,  according  to  the  directions  of  the  Penal  Code, 
display  a  white  flag,  which  shall  be  carried  either  by  him  or  by  an  offi- 
cer of  justice,  or  other  person  appointed  by  him.  The  flag  bearer 
shall  then  proclaim  "  Silence  !  while  [F.  T.  judge  of  the  criminal 
court]  speaks  in  the  name  of  the  law  I"  The  magistrate  shall  then 
make  his  order  in  the  following  form :  "  In  the  name  of  the  state  of 
Louisiana,  and  by  virtue  of  the  powers  vested  in  me  by  law  as  [the 
judge  of  the  criminal  court,]  I  order  this  assembly  to  disperse  ;  and  I 
warn  each  of  you,  that  by  remaining  he  makes  himself  liable  to  im- 
prisonment at  hard  labour  for  any  riot  that  may  be  committed  by  him- 
self or  his  associates,  and  to  fine  and  imprisonment  for  not  retiring  in 
half  an  hour  after  this  warning,  even  if  no  other  offence  be  committed  ; 
and  if  any  or  other  crime  should  be  committed  in  the  prosecution  of 
the  illegal  purpose  for  which  you  are  assembled,  all  of  you  will  incur 
the  guilt  and  the  punishment.  Again  I  command  you,  in  the  name  of 
the  law  and  the  state,  to  disperse." 

Art.  587.  All  the  consequences  of  not  dispersing  are  incurred  if  the 
magistrate  is  by  Violence  prevented  from  making  the  proclamation,  or 
displaying  his  flag  ;  or  if  he  should  not  make  the  proclamation  in  the 
form  prescribed,  provided  (if  not  prevented  by  violence)  he  shall  dis- 
play the  flag,  cause  his  office  to  be  known,  and  give  the  order  to  dis- 
perse. But  the  magistrate  is  guilty  of  a  neglect  of  duty  who  does  not 
pursue  the  forms  above  directed. 

Art.  588.  After  making  the  proclamation  and  order,  the  magistrate 
shall  take  notice  of  the  precise  time  at  which  such  order  was  given, 
and  as  soon  as  possible  shall  make  a  minute  thereof  in  writing,  signed 
by  himself  and  other  witnesses. 

Art.  589.  If  the  proclamation  be  made  to  those  actually  engaged  in 
a  riot,  the  magistrate  shall  cause  those  to  be  arrested  who  shall  perse- 
vere in  the  unlawful  act  after  the  proclamation  has  been  made. 

Art.  590.  If  the  proclamation  be  made  to  an  unlawful  assembly, 
but  before  any  riot  has  been  committed,  he  shall  arrest  those  who 
remain  in  the  said  assembly  after  the  expiration  of  the  half-hour  from 
the  time  of  the  order  to  disperse,  as  well  as  those  who  before  the  ex- 
piration of  that  time  shall  commit  any  act  that  amounts  to  a  riot. 

Art.  591.  Application  to  procure  an  injunction  against  any  trade, 
or  continuing  any  act  or  cause  injurious  to  public  health. 

Such  application  must  be  made  in  the  following  form  : 

"To  the  [judge  of  the  criminal  court]: 

«  The  petition  of  A.  B.,  C.  D.  and  E.  F.  inhabitants  of  [the  Bayou 


CODE  OF  PROCEDURE.  569 

St  John  in  the  city  of  New  Orleans],  showeth,  that  G.  H.  of  the 
same  place,  hath  lately  been  indicted  in  this  court  for  [suffering  the 
blood  which  he  uses  in  refining  sugar  to  putrefy]  in  a  manner  inju- 
rious to  the  health  of  the  inhabitants  in  the  vicinity  ;  that  notwith- 
standing such  indictment,  the  said  G.  H.  continues  the  said  practice 
to  the  great  danger  of  your  petitioners  and  others  in  the  vicinity  : 
they  therefore  pray,  that  the  said  G.  H.  may  be  enjoined  from  contin- 
uing the  said  unhealthy  process." 

Art.  592.  Citation  on  the  above  petition  to  be  served  on  the  de- 
fendant : 

"  G.  H.  you  are  cited  to  appear  before  [the  criminal  court  of  the 
state  of  Louisiana]  on  the  day  of  next,  at  ten 

o'clock  in  the  morning,  to  show  cause,  if  any  you  have,  why  the 
prayer  of  the  petition,  a  copy  whereof  is  annexed,  should  not  be 
granted.  Dated  the  day  of  in  the  year 

eighteen  hundred  and  ." 

Art.  593.   Injunction  on  the  above  petition  : 

"  The  state  of  Louisiana  to  G.  H. 

"  Whereas,  an  indictment  hath  been  presented  against  you  in  the 
criminal  court,  charging  [that  in  carrying  on  the  business  of  refining 
sugar  you  suffer  the  blood  used  in  that  process,  to  putrefy]  so  as  to 
injure  the  health  of  persons  residing  in  the  vicinity  ;  and  whereas  it 
hath  been  represented  to  our  said  court,  that  notwithstanding  such 
indictment,  you  still  continue  the  said  [process]  to  the  great  injury 
of  the  persons  in  the  neighbourhood  of  jTour  works  :  you  are,  there- 
fore, commanded  to  desist  from  continuing  such  [mode  of  carrying  on 
the  said  business]  as  is  complained  of  under  the  penalty  of  fine,  im- 
prisonment, and  sequestration  of  your  [works].  Witness,  F.  T. 
judge  of  the  said  court,  the  clay  of  in 

the  year  ." 

Art.  594.  If  it  shall  appear  to  the  court  that  this  injunction  is  wil- 
fully disobeyed,  they  may  order  the  works,  or  other  cause  of  injury 
to  public  health,  to  be  sequestered  until  the  trial  of  the  indictment,  or 
until  the  defendant  shall  give  security  to  obey  the  order  of  the  court. 

Art.  595.  In  all  cases  where  any  one  shall  wilfully  disobey  any 
lawful  writ  of  injunction,  issued  by  a  competent  court  in  a  criminal 
cause,  he  may  be  fined  not  exceeding  fifty  dollars,  and  imprisoned 
not  exceeding  ten  days,  by  the  court,  on  hearing,  in  a  summary  man- 
ner, without  the  intervention  of  a  jury. 

Art.  596.  Writ  of  sequestration  for  disobedience  to  the  injunction. 
"  The  state  of  Louisiana  to  the  sheriff  of  [the  parish  of  the  city  of 

New  Orleans :] 

"  You  are  commanded  to  take  into  your  possession  [the  buildings 
situate  at  the  Bayou  St  Johns,  in  which  G.  H.  now  carries  on  the 
business  of  refining  sugar,  and  that  after  causing  the  putrid  blood  to  be 
removed  therefrom],  you  safely  keep  the  said  [building]  until  the  fur- 
ther order  of  this  court.  Witness,"  &c. 

Art.  597.  The  form  hereinbefore  prescribed  shall  be  used  in  cases 
of  manufacturing  or  storing  articles,  dangerous  from  their  explosive 
nature  to  human  life,  except  that  in  the  petition  the  injunction  and 
the  sequestration,  the  charge  shall  be  according  to  fact  of  the  manu- 
facture carried  on,  or  the  article  stored,  and  that  it  endangers  the  lives 
3  W 


570  CODE  OF  PROCEDURE. 

of  the  inhabitants  in  the  vicinity,  instead  of  their  health,  as  is  stated  in 
the  forms  above  prescribed. 

Art.  598.  Petition  for  the  removal  of  a  building  or  obstruction  of 
public  property,  held  for  the  common  use  of  all  the  inhabitants  : 
"To  F.  T.  [judge  of  the  criminal  court.] 

"  A.  B.  complains  that  C.  D.  has  lately  erected  a  [house]  which 
permanently  obstructs  the  free  use  of  [a  street  called  Lafayette-street, 
in  the  city  of  New  Orleans];  that  the  said  [street]  is  public  property, 
held  for  the  common  use  of  all  the  citizens,  and  that  the  part  thereof 
on  which  the  said  [house]  is  erected  has  been  in  such  common  use 
for  twelvemonths  next  preceding  the  time  of  erecting  the  said  [house], 
of  all  which  the  said  A.  B.  is  ready  to  make  proof,  and  he  prays  that 
the  said  C.  D.  may  be  cited,  and.that  the  said  obstruction  may  be  re- 
moved." 

Art.  599.  The  citation  shall  be  in  the  following  form  : 

"  C.  D.  you  are  cited  to  appear  before  me,  at  [my  dwelling-house  in 
the  suburb  St  Mary,]  on  the  day  of  at  ten  o'clock  in  the 

morning,  to  show  cause,  if  any  you  have,  why  the  prayer  of  the  peti- 
tion, a  copy  whereof  is  annexed,  should  not  be  granted.      Dated  the 
day  of  in  the  year  ." 

Art.  600.  The  order  for  removal  shall  be  in  the  following  form  : 

{( By  [F.  T.  judge  of  the  criminal  court.]     To  the  sheriff  of  the  parish 

[of  the  city  of  New  Orleans.] 

"  Whereas,  complaint  has  been  made  to  me  that  C.  D.  has  lately  erect- 
ed a  [house]  which  permanently  obstructs  the  free  use  of  a  [street  called 
Lafayette-street,  in  the  city  of  New  Orleans]  ;  that  the  said  street  is  pub- 
lic property,  held  for  the  common  use  of  all  the  citizens  ;  and  that  the 
part  thereof  on  which  the  said  [house]  is  erected  has  been  in  such  com- 
mon use  for  twelve  months  next  preceding  the  time  of  erecting  such 
[house]  ;  all  which  allegations  have  been  clearly  proved,  and  the  incon- 
venience to  the  public  being,  in  my  opinion,  so  great  from  the  obstruc- 
tion aforesaid  as  to  render  it  improper  to  wait  the  event  of  a  trial  for  the 
offence,  I  do  therefore,  by  virtue  of  the  powers  vested  in  me  as  judge 
of  the  court  of  the  highest  criminal  jurisdiction  in  this  district,  com- 
mand you,  that  you  cause  the  said  [house]  to  be  removed,  so  that  it 
may  no  longer  obstruct  the  said  street." 

Art.  601.  Complaint  of  an  intended  libel,  or  of  publication  injurious 
to  morals  and  decency  : 

"To  A.  B.  one  of  the  justices  of  the  peace  for  the  parish  of  Plaque- 
mine  : 

"C.  D.  of  the  said  parish,  complains  that  E.  F.  of  the  said  parish, 
hath  written  or  printed  a  false  and  malicious  libel  concerning  the  depo- 
nent, which  he  is  continuing  to  sell  or  publish,  [or  has  written  a  false 
and  malicious  libel  against  the  deponent,  which  he  intends  to  publish, 
as  the  case  may  be]  [or  that  the  said  E.  F.  has  prepared  and  intends  to 
publish  an  obscene  print  (or  picture)  or  a  written  composition  called, 
as  the  case  may  be]  which  manifestly  tends  to  corrupt  the  morals  of 
youth ;  all  which  the  complainant  has  good  reason  lo  believe  and  does 
believe  ;  wherefore  he  prays,  that  the  said  E.  F.  may  be  cited  before 
you,  and  that  he  may  receive  the  admonition  in  such  case  directed  by 
law." 

Art.  602.   Citation  in  the  above  complaint ; 

"  [E.  F.  of  the  parish  of  Plaquemine,]  you  are  hereby  cited  to  ap- 


CODE  OF  PROCEDURE.  571 

pear  before  me  [A.  B.  one  of  the  justices  of  the  peace  for  the  said  par- 
ish,] on  the  day  of  at  ten  o'clock  in  the  forenoon,  to  hear 
such  things  as  may  be  addressed  to  you  in  relation  to  a  libel  against 
C.  D.  [or  a  publication  contrary  to  morals  and  decency,  as  the  case  may 
be].  Dated  the  day  of  in  the  year  ." 

Art.  603.  Admonition  on  the  above  citation  : 

"E.  F.  affidavit  having  been  made  before  me,  that  there  is  good  rea- 
son to  believe  that  you  intend  to  publish  or  sell  a  libel  against  C.  D.  of 
this  parish,  [or  as  the  case  may  be,  a  publication  against  decency,  man- 
ifestly tending  to  corrupt  the  morals  of  youth]  or  [that  you  have  pre- 
pared and  intend  to  publish  some  work  of  that  description,]  it  is  made 
my  duty  to  admonish  you,  which  I  hereby  do,  that  although  no  restraint 
can  be  laid  on  the  liberty  secured  to  every  one  by  the  constitution, 
* '  freely  to  speak,  write,  and  print  on  any  subject,"  yet  the  same  con- 
stitution makes  you  liable  for  the  abuse  of  that  liberty,  and  the  laws  have 
empowered  and  directed  me  to  warn  you  that  if,  after  this  admonition, 
you  should  commit  the  offence  that  is  apprehended,  you  will  suffer  the 
highest  punishment  that  can  be  inflicted,  that  is  to  say  [if  the  apprehend- 
ed offence  be  a  libel  purporting  the  accusation  of  a  crime]  imprison- 
ment for  twelve  months  and  a  fine  of  three  thousand  dollars  ;  [if  the 
apprehended  libel  does  not  import  the  accusation  of  a  crime,  then  say, 
imprisonment  for  nine  months  and  a  fine  of  two  hundred  and  fifty  dol- 
lars,] [and  if  the  apprehended  offence  be  one  against  decency,  then  say, 
imprisonment  for  six  months  and  a  fine  of  one  thousand  dollars.]" 


CHAPTER  II. 


Of  the  forms  to  be  used  in  the  suppression  of  permanent  offences 
against  personal  liberty. 

Art.  604.  The  suppressive  remedy  for  offences  against  personal  lib- 
erty is  the  writ  of  habeas  corpus.  The  directions  for  obtaining  and  pro- 
ceeding under  that  writ  are  minutely  detailed  in  the  first  book  of  this 
Code,  title  second,  chapter  seventh.  The  forms  are  herein  given  to  pre- 
serve uniformity  in  practice  ;  but  no  part  of  such  forms  are  essential 
but  such  as  are  declared  to  be  so  in  the  chapter  above  referred  to. 

Art.  605.  Petition  for  a  writ  of  habeas  corpus  by  the  party  imprison- 
ed, where  the  imprisonment  is  under  colour  of  judicial  process,  but 
irregular  in  form  : 

"To  J.  L.    [district  judge  of  the  state  of  Louisiana  for  the  first  dis- 
trict.] 

"  The  petition  of  A.  B.  of  the  city  of  New  Orleans,  showeth,  that  he 
is  imprisoned  in  the  prison  of  the  city  of  New  Orleans,  in  the  custody 
of  the  sheriff  of  the  said  city,  by  virtue  of  [an  order  purporting  to  be  a 
commitment  made  by  C.  D.  one  of  the  justices  of  the  peace  for  said 
city,]  a  copy  of  which  [order]  is  hereunto  annexed,  [or  if  the  copy  has 
been  refused  to  be  given,  say,  a  copy  of  which  commitment  is  not  here- 
unto annexed,  because  on  application  to  the  keeper  of  the  prison  the 
same  was  refused  to  be  given] ;  and  your  petitioner  is  advised  and  be- 
lieves, that  his  imprisonment,  or  under  colour  of  the  said  [order],  is 


572  CODE  OF  PROCEDURE. 

illegal.  Your  petitioner,  therefore,  prays,  that  a  writ  of  habeas  corpus, 
directed  to  said  sheriff  or  the  keeper  of  the  said  prison,  may  be  grant- 
ed, ordering  him  forthwith  to  bring  your  petitioner  before  you,  that  he 
may  be  discharged  according  to  law." 

Art.  606.  When  the  petition  is  made  by  any  other  than  the  person 
imprisoned,  it  may  state  the  fact  of  imprisonment  and  illegality,  accord- 
ing to  the  best  of  his  information  and  belief. 

Art.  607.  Petition  when  the  imprisonment  is  by  virtue  of  judicial 
process,  regular  in  form  but  illegally  obtained,  and  where  a  third  party 
is  interested  in  the  discharge. 

As  in  the  last  form  to  "in  the  custody  of  the  sheriff  of  the  said  city, 
by  virtue  of  a  writ  purporting  to  be  a  writ  [of  capias  ad  satisfaciendum, 
issuing  out  of  the  parish  court  for  the  parish  of  the  city  of  New  Orleans, 
at  the  suit  of  C.  D.  to  satisfy  a  judgment  pretended  to  have  been  ob- 
tained in  the  said  court,  for  the  sum  of  one  thousand  dollars  ;  but  in  truth 
no  such  judgment  was  ever  entered,  nor  is  there  any  judgment,  order, 
or  decree,  to  authorize  the  said  process.  ]  Wherefore  he  prays,  that 
the  said  C.  D.  may  be  cited  according  to  law,  and  that  a  writ  of  habeas 
corpusbe  granted,"  &c. 

Art.  60S.  On  the  above  petition  the  judge  issuing  the  habeas  corpus 
shall  indorse  these  words,  "the  within  named  A.  B.  must  be  brought 
up,  notwithstanding  the  [execution]  within  mentioned,"  otherwise  the 
sheriff  need  only  send  up  the  [execution],  as  is  provided  by  the  third 
section  of  the  seventh  chapter  of  this  Code,  above  referred  to. 

Art.  609.  Citation  to  the  plaintiff  at  whose  suit  the  execution  men- 
tioned in  the  preceding  petition  was  taken  out,  conformably  to  the  di- 
rections in  the  said  chapter,  regulating  proceedings  on  habeas  cor- 
pus. 

"  By  J.  L.  district  judge  of  the  state  of  Louisiana  for  the  first  district. 
To  C.  D.  of  the  city  of  New  Orleans. 

"  You  are  hereby  cited  to  appear  before  me,  at  the  court  house  of  the 
district  court,  at  nine  o'clock  to-morrow  morning,  to  show  cause,  if 
any  you  have,  why  A.  B.  confined,  illegally  as  is  said,  at  your  suit  in 
the  prison  of  this  city,  should  not  be  discharged  on  a  writ  of  habeas 
corpus.  Dated,"  &c. 

Art.  610.  Petition  where  the  imprisonment  is  not  under  colour  of 
any  judicial  process. 

"  That  he  is  illegally  confined  by  J.  W.  [in  the  fort  of  Plaquemine, 
in  this  district]  ;  he  therefore  prays,"  &c. 

Art.  611.  Petition  where  the  party  is  claimed  to  be  held  as  a  slave. 

"  That  he  is  a  free  person,  but  is  illegally  held  to  service  as  a  slave 
by  C.  D.  Therefore  he  prays,  that  a  writ  of  habeas  corpus,  directed 
to  the  said  C.  D.,  may  issue,  commanding  him,"  &c.  as  in  the  preced- 
ing form. 

Art.  612.   The  form  of  the  writ  of  habeas  corpus  is  set  forth  in  the 
article  of  this  code  in  the  chapter  relating  to    "  the  suppression 
of  offences  against  personal  liberty." 

Art.  613.  Proof  of  the  service  of  a  writ  of  habeas  corpus  when  a 
copy  has  been  kept. 

"  A.  B.  being  duly  sworn,  doth  dispose,  that  on  the  day 

of  ,  about  the  hour  of  ten  before  noon,  he  delivered  to  C. 

D.  the  original  writ  of  habeas  corpus,  of  which  a  true  copy  is  here- 
unto annexed." 


CODE  OF  PROCEDURE.  573 

Art.  614.  Proof  service  where  no  copy  has  been  kept. 

As  above.     "  That  on  the  day  of  ,  at  about  the 

hour  of  ten  in  the  forenoon,  he  did  serve  on  C.  D.  a  writ  of  habeas 
corpus,  allowed  by  J.  L.  district  judge,  directed  to  the  said  C.  D.  by 
which  he  was  ordered  [forthwith]  to  produce  A.  B.,  said  to  be  in  his 
custody,  before  the  said  judge,  at  the  court  room  of  the  first  district 
court,  in  this  city  ;  that  the  said  service  was  made  by  delivering  the 
said  writ  to  the  said  C.  D." 

Art.  615.  Affidavit  in  cases  where  the  person  to  whom  the  writ  is 
directed  refuses  to  receive  it. 

As  above.  «  That  he  offered  the  writ  which  is  hereunto  annexed, 
on  the  day  of  at  about  the  hour  of  ten  before 

noon,  to  C.  D.  to  whom  the  same  is  directed,  but  that  he  refused  to  re- 
ceive the  same,  whereupon  the  deponent  verbally  informed  the  said 
C.  D.  of  the  contents  of  the  said  writ." 

Art.  616.  Proof  in  cases  where  the  person  to  whom  the  writ  is  di- 
rected conceals  himself,  or  refuses  admittance  to  the  person  charged 
with  the  service. 

As  above.  "  That  he  went  to  the  dwelling  house  of  C.  D.  to  whom 
the  writ  of  habeas  corpus,  of  which  a  copy  is  hereunto  annexed,  was 
directed,  with  the  said  writ  in  his  possession,  but  that  he  was  refused 
admittance  into  the  said  house,  [or  that  having  entered  the  said  house 
he  sought  for  the  said  C.  D.  in  order  to  serve  the  said  writ,  but  that 
the  said  C.  D.  was  not  there  to  be  found,  and  the  deponent  believes  that 
he  conceals  himself  to  avoid  the  service  thereof ;  whereupon  the  depo- 
nent proclaimed  aloud  his  business,  and  fixed  up  the  said  writ  on  the 
outside  of  the  said  house,  on  the  outer  door  thereof,  where  he  left  the 
same]." 

Art.  617.  In  this  last  case,  if  the  deponent  have  kept  no  copy,  he 
must,  instead  of  saying  "  a  writ  of  habeas  corpus  of  which  a  copy  is 
annexed,"  describe  the  same  as  in  the  form  above  prescribed  for  proof 
of  service  when  no  copy  was  kept. 

Art.  618.  Form  of  a  return  when  he  to  whom  the  writ  is  directed, 
has  not  the  person  he  is  directed  to  produce  in  his  custody,  or  under 
his  control. 

"  I,  C.  D.,  to  whom  the  within  writ  is  directed,  do  return,  that  I 
have  not  now,  nor  within  three  days  before  the  date  of  the  said  writ, 
have  not  had  the  within  named  A.  B.  within  my  power,  restraint,  or 
control.  (Signed)  "A.  B. 

"  Sworn  before, 
"E.  F.  justice  of  the  peace,"  &c. 

Art.  619.  Form  when  he  had  the  custody  or  control  of  the  party 
within  three  days,  but  has  transferred  him  to  another. 

"  I,  C.  D.,  to  whom  the  within  writ  is  directed,  do  return,  that  I 
have  not  the  within  named  A.  B.  now  in  my  custody,  or  under  my 
restraint  or  control  ;  but  that  on  the  day  of 

[the  said  C.  D.  was  delivered  to  me  as  a  deserter  from  the  first  regi- 
ment of  United  States  infantry,  by  J.  S.  a  sergeant  in  the  first  company 
of  said  regiment,  I   being  at  that  time  commander  of  the  fort  of  St 
Phillips  in  this  state,  and  that  I  afterwards,  to  wit,  on  the 
day  of  transferred  the  custody  of  the  said  A.  B.  to  L.  M.  a 

captain  in  the  said  regiment,  before  the  issuing  of  the  said  writ,  and 
before  1  had  any  notice  of  an  intent  to  apply  for  the  same]." 


574  CODE  OF  PROCEDURE. 

Art.  620.   Form  when  the  party  is  in  custody  on  judicial  process. 

"  I,  C.  D.,  to  whom  the  within  writ  is  directed,  do  return,  that  in 
obedience  thereto  I  have  the  within  named  A.  B.  at  the  time  and  place 
within  mentioned  in  my  custody,  and  that  the  cause  of  his  detention  is 
a  certain  [order  or  commitment]  which  is  annexed  to  this  writ,  to  me 
directed  as  [keeper  of  the  prison  of  the  city  of  New  Orleans."] 

Art.  621.  Form  of  return  when  the  applicant  is  held  as  a  slave. 

"I,  C.  D.,  [as  above]  and  that  the  cause  of  his  detention  is  this,  that 
he  is  a  slave,  legally  acquired  as  my  property,  and  I  pray  that  his  claim 
to  freedom  may  be  inquired  of  and  determined  according  to  law." 

Art.  622.   Form  of  return  when  the  party  Is  too  sick  to  be  produced. 

"  I,  C.  D.,  to  whom  the  within  writ  is  directed,  do  in  obedience 
thereto  return,  that  the  said  A.  B.  is  detained  in  my  custody  by  virtue 
of  [an  order  of  commitment  to  me  directed  as  keeper  of  the  prison  of 
the  city  of  New  Orleans,  which  is  hereunto  annexed],  and  that  I  have 
not  produced  the  said  A.  B.  because  it  could  not  be  done  without  dan- 
ger to  his  life  from  the  sickness  which  he  now  suffers,  as  appears  by 
the  testimony  of  the  physician  and  witnesses  hereunto  annexed." 

Art.  623.   Certificate  of  physician. 

"I.  D.  H.,  a  physician  regularly  admitted  to  practice,  certify,  that  1 
have  visited  A.  B.  now  in  the  custody  of  [the  keeper  of  the  prison  at 
New  Orleans,]  and  found  him  suffering  with  a  [bilious  fever],  and  that, 
in  my  opinion,  he  cannot  be  brought  before  the  judge  on  the  annexed 
writ  without  danger  of  his  life." 

"  We,  I.  K.  and  t.  F.  being  duly  sworn,  do  depose,  that  we  have 
seen  the  within  named  A.  B.  and  believe,  from  the  state  of  his  health, 
that  he  cannot  be  produced  in  obedience  to  this  writ,  without  danger  to 
his  life.  In  witness  whereof,  as  well  we  the  said  witnesses  as  the  said 
A.  B.  have  signed  this  deposition." 

Art.  624.  Form  of  a  warrant  to  bring  up  the  prisoner  when  the  writ 
of  habeas  corpus  has  not  been  obeyed. 

"By  J.   L.  [district  judge  of  the  first  district  court.]      To  A.  B. 
[one  of  the  constables  of  the  city  of  New  Orleans.] 

"  Whereas,  a  writ  of  habeas  corpus  was  lately  allowed  by  me,  direct- 
ed to  C.  D.  of  the  city  of  New  Orleans,  directing  him"  to  bring  before 
me  A.  B.  in  his  custody,  as  was  said  illegally  detained,  and  the  said 
C.  D.  having  disobeyed  the  said  writ, — These  are  to  command  you,  to 
take  the  said  A.  B.  out  of  the  custody,  or  from  under  the  restraint  or 
control  of  the  said  C.  D.  or  of  any  person  to  whose  custody  he  may 
have  transferred  him,  and  to  bring  him  before  me  without  delay,  to 
abide  such  order  as  I  may  make  in  the  case.  Witness  my  hand,  this 
day  of  in  the  year  ." 

Art.  625.  Warrant  to  arrest  the  person  to  whom  the  habeas  corpus 
was  directed,  for  not  bringing  up  the  prisoner. 

Direction  and  recital  as  in  the  preceding  form.  "  These  are  to  com- 
mand you,  that  you  arrest  the  said  C.  D.  and  bring  him  in  safe  custody 
before  me  without  delay,  to.  be  dealt  with  for  his  said  default  according 
to  law.  Witness,"  &c. 

Art.  626.  Commitment,  where  the  party  on  being  brought  before  the 
judge,  on  the  preceding  warrant,  refuses  to  return  the  writ  or  to  pro- 
duce the  prisoner. 
"By  J.  L.  district  judge,  &c.     To  [  the  keeper  of  the  prison  of  the 

city  of  New  Orleans.  ] 
<«  Receive  in  your  custody  C.  D.  herewith  sent  to  you  for  refusing 


CODE  OF  PROCEDURE.  575 

obedience  to  a  writ  of  habeas  corpus,  by  me  issued,  directing  him  to 
produce  A.  B.  in  his  custody  as  was  alleged,  and  him  the  said  C.  D. 
safely  keep  until  discharged  by  due  course  of  law.  Witness,"  &c. 

Art.  627.   Petition  for  a  warrant  to  bring  up  the  prisoner  when  there 
is  danger  of  his  being  carried  out  of  the  state,  or  of  irreparable  injury, 
and  to  arrest  the  person  in  whose  custody  he  is. 
"  To  J.  L.  district  judge,  &c. 

"  The  petition  of  A.  B.  showeth,  that  C.  D.  is  now  in  the  custody  or 
power  of  one  J.  S.  [who  has  put  him  on  board  of  a  vessel  called  the 
Tartar,  lying  at  the  levee  of  this  city,  now  ready  to  sail  ;  and  that  the 
said  J.  S.  intends,  as  the  deponent  is  informed  and  verily  believes,  for- 
cibly to  convey  the  said  C.  D.  against  his  will  and  without  any  legal 
authority,  out  of  this  state  ;]  and  the  deponent  verily  believes,  that  if  a 
writ  of  habeas  corpus  issue  it  will  be  disobeyed,  and  the  said  C.  D.  will, 
notwithstanding  such  writ,  be  conveyed  out  of  the  state,  [or  suffer  ir- 
reparable injury,  as  the  case  may  be  ;]  and  the  petitioner  shows,  that  the 
said  J.  S.  hath  knowingly  and  illegally  deprived  the  said  C.  D.  of  his 
liberty,  with  intent  to  [convey  him  out  of  the  state  :]  wherefore  he 
prays,  that  a  warrant  may  issue  to  bring  before  you  the  said  C.  D.  to  be 
discharged  according  to  law,  and  to  arrest  the  said  J.  S.  to  answer  for  the 
said  offence. 
"  Sworn,"  &c. 
Art.  628.  Warrant  on  the  above  petition. 

"  By  J.  L.  &c.     To  the  sheriff,  &c. 

"  Whereas  proof  has  been  made  before  me,  that  [one  C.  D.  is  illegal- 
ly confined  on  board  a  vessel  called  the  Tartar,  lying  at  the  levee  of 
this  city,  and  by  one  J.  S.  who  intends  illegally  and  forcibly  to  convey 
the  said  C.  D.  against  his  will  out  of  this  state,  before  he  can  be  reliev- 
ed by  the  due  course  of  law  :]  these  are,  therefore,  to  command  you  to 
take  the  said  C.  D.  out  of  the  custody  of  the  said  J.  S.,  or  of  any  other 
person  to  whose  custody  he  may  have  transferred  him,  and  to  bring  him 
before  me,  [at  the  court-room  of  the  first  district  court,]  without  delay, 
to  abide  such  order  as  I  may  make  in  the  case  :  and  you  are  also  com- 
manded to  arrest  the  said  J.  S.  and  bring  him  before  me,  without  delay, 
[at  the  said  court-room,]  to  answer  for  the  said  offence.  Witness,"  &c. 

Art.  629.  When  the  petition  does  not  expressly  charge,  that  the  per- 
son in  whose  custody  the  prisoner  is  has  committed  an  offence,  in  the 
arrest  and  detention  of  the  person  detained,  then  the  part  of  the  warrant 
ordering  his  arrest  is  to  be  omitted. 

Art.  630.  Return  when  the  party  ordered  to  be  produced  has  died  in 
imprisonment,  with  record  of  the  inquest. 

"I,  C.  D.,  to  whom  the  within  writ  is  directed,  do  in  obedience  there- 
to return,  that  the  within  named  A.  B.  was  committed  to  my  custody 
[as  keeper  of  the  prison  of  the  city  of  New  Orleans]  on  the  day 

of  last,  by  virtue  of  [a  warrant  of  commitment]  which  is  here- 

unto annexed,  but  that  I  cannot  produce  him,  as  I  am  directed,  because 
on  the  day  of  last  he  departed  this  life  [by  the  visitation  of 

God,]  as  appears  by  the  proceedings  herewith  returned." 
Annex  the  inquest. 
Art.  631.  Notice  to  the  coroner  of  the  death  of  the  prisoner. 

"  To  the  coroner  of  the  parish  of  New  Orleans. 
"  Please  to  take  notice,  that  last  night,  about  the  hour  of  twelve,  C.  D. 


576  CODE  OF  PROCEDURE. 

a  prisoner,  confined  in  the  prison  under  my  charge,  departed  this  life, 
that  his  body  now  remains  in  the  said  prison  in  the  situation  in  which 
he  died,  and  that  I  request  you  will  summon  a  jury  of  inquest  to  perform 
the  duties  in  such  case  required  by  law." 

Art.  632.  The  summons  for  the  jury  and  the  inquest  shall  be  in  the 
form  herein  before  prescribed  for  inquests  on  dead  bodies. 

Art.  633.  Discharge  when  no  sufficient  cause  of  detention  is  shown 
by  the  return. 

"  By  J.  L.  judge  of  the  district  court,  &c.      To  the  keeper  of  the  pri- 
son of  the  parish  of  New-Orleans. 

"  Discharge  out  of  your  custody  C.  D.  of  the  said  city,  if  detained  for 
no  other  cause  than  that  shown  by  your  return  to  the  writ  of  habeas  cor- 
pus, allowed  by  me  on  the  day  of  last,  and  for  your  so  do- 
ing this  shall  be  your  sufficient  warrant.     Dated  the  day  of 
in  the  year             ." 

Art.  634.    Order  to  remand  when    sufficient  cause  of  detention  is 
shown. 

"To  the  keeper  of  the  prison,  &c. 

"  C.  D,  brought  before  me  on  a  writ  of  habeas  corpus,  dated  the 
day  of  instant,  is  remanded  to  your  custody,  the  cause  shown  by 

you,  in  your  return  to  the  said  writ,  being  sufficient  in  law  for  his  de- 
tention." 


TITLE  III. 


OF  THE  FORM  TO  BE  USED  IN  THE  PROCEEDING  AUTHORISED  BY  THE  FIRST  BOOK, 
TITLE  THIRD,  FOR  CALLING  FOR  AND  EMPLOYING  MILITARY  FORCE. 


ONLY  CHAPTER. 


Forms  of  information  and  requisition. 

Art.  635.  Information  of  the  existence  of  a  riot  or  insurrection. 
"To  J.  L.  district  judge,  and  I.  K.  and  L.  M.  justices  of  the  peace. 

«  A.  B.  and  C.  D.  inhabitants  of  the  city  of  New  Orleans,  being  duly 
sworn,  say,  that  a  number  of  men,  consisting  of  more  than  twenty,  [that 
is  to  say,  one  hundred  and  more,]  according  to  the  best  estimate  the  de- 
ponent can  make  of  their  numbers,  are  now  assembled  [in  Chartres-street 
in  this  city,  many  of  them  armed  with  swords  and  pistols,  and  others 
with  clubs,  and  bricks,  and  other  missiles,  with  the  intent,  as  avowed  by 
many  of  them,  to  break  into  the  prison  of  the  said  city  in  order  to  libe- 
rate the  persons  legally  confined  therein  ;  that  they  have  already  begun 
to  execute  their  threats  by  breaking  the  outer  door  of  the  said  prison,] 
and  that  they  have  refused  to  disperse,  although  they  were  ordered  so  to 
do  by  proclamation,  solemnly  made  in  the  manner  directed  by  law  by 


CODE  OF  PROCEDURE.  577 

a  magistrate  ;  and  the  deponent  further  says,  that  the  said  rioters  cannot 
be  arrested  or  dispersed  by  the  ordinary  form  of  civil  authority,  such 
arrest  having  been  attempted  by  the  officers  of  justice,  who  were  always 
resisted  by  force  and  with  deadly  weapons,  [and  some  of  them  wound- 
ed and  others  killed  in  the  attempt."] 

Art.  636.  Application  of  the  judge  and  other  magistrates  to  the  go- 
vernor for  the  employment  of  a  military  force. 

"  To  his  excellency  H.  J.  governor  of  the  state  of  Louisiana. 

"  We,  J.  L.,  judge  of  the  district  court,  and  I.  K.  and  L.  M.,  justices 
of  the  peace  for  the  city  of  New  Orleans,  being  convinced  by  the  affi- 
davits of  two  inhabitants  of  this  state,  that  a  riot  has  taken  place  in  the 
parish  [of  the  city  of  New  Orleans,]  where  they  reside,  and  that  the 
persons  engaged  therein  cannot  be  arrested  or  dispersed  by  the  ordi- 
nary force  of  civil  authority  ;  all  which,  as  well  as  the  object  of  the  said 
riot,  appears  by  the  affidavit  aforesaid,  which  is  hereunto  annexed  and 
to  which  we  refer  :  we  therefore  request,  that  you  will  be  pleased  to  or- 
der a  military  force  of  at  least  two  hundred  men,  to  repair  to  the  place 
where  the  said  rioters  are  assembled,  and  to  act  under  our  direction,  ac- 
cording to  law." 


TITLE  IV. 


OF  THE  FORMS   USED    IN  THE    PROCEEDINGS    AUTHORIZED  IN    THE  SECOND  BOOK, 
FOR  PROSECUTING  OFFENCES. 


CHAPTER  I. 


Special  forms  of  complaints,  accusations,  citations,  and  tuarranls 

of  arrest. 

Art.  637.  Form  of  a  complaint  where  the  complainant  is  not  suffi- 
ciently acquainted  with  the  circumstances  to  make  oath  of  the  fact. 

"Be  it  remembered,  that  on  this  day  of 

before  me,  P.  B.,  associate  judge  of  the  city  court  of  the  city  of  New 
Orleans,  personally  appeared  A.  B.  of  the  said  city,  who  made  com- 
plaint, that  [his  store,  situate  in  Royal-street,  was  broken  open  last 
night  between  the  hours  of  ten  and  twelve,  and  that  ten  pieces  of  Irish 
linen  were  stolen  and  carried  away]  by  some  person  or  persons  to  him 
unknown,  but  that  he  believes  [his  opposite  neighbour  C.  D.]  can 
give  testimony  that  may  designate  the  offenders. 

(Signed)  "  A.  B. 

"Sworn  this  day  before  me." 

Art.  638.  Citation  for  witnesses  to  appear  before  the  magistrate. 

"Mr  C.  D.,  you  are  commanded  to  appear  forthwith  before  me,  [G. 
P. ,  one  of  the  associate  judges  of  the  city  court  of  the  city  of  New 
3  X 


578  CODE  OF  PROCEDURE. 

Orleans,  at  my  office  in  the  city-hall,]  to  testify  what  you  know  rela- 
tive to  a  complaint  made  by  A.  B.,  of  [house-breaking]  ;  and  hereof 
fail  not  under  the  penalties  imposed  by  law  of  fine,  imprisonment,  and 
constraint.  Given  under  my  hands,  this  day  of 

in  the  year  ." 

Art.  639.  Return  of  the  service. 

"I,  H.  R.,  one  of  the  constables  of  the  city  of  New  Orleans,  certify, 
on  my  oath  of  office,  that  I  did  on  this  day  deliver  a  copy  of  the 
within  citation  to  C.  D.  therein  named,  about  the  hour  of  ten  in  the 
morning." 

Art.  640.  Jf  the  witness  does  not  appear  according  to  the  citation, 
the  magistrate  is  authorized  to  impose  a  fine  not  exceeding  five  dollars, 
and  to  issue  a  warrant  of  attachment  to  constrain  his  appearance  ;  and 
if  he  appear  and  refuse  to  give  testimony,  he  may  commit  him  to  pri- 
son until  he  shall  submit  to  be  examined. 

Art.  641.  Warrant  of  attachment  to  compel  the  appearance  of  a 
witness  before  the  magistrate. 

"By  G.  P.,  associate  judge  of  the  city  court  of  New  Orleans.     To 
any  officer  of  justice  of  the  said  city  : 

"You  are  commanded  to  take  into  your  custody  C.  D.,  and  bring 

him  forthwith  before  me,  that  he  may  be  examined  as  a  witness  in  the 

complaint  of  A.  B.  entered  before  me  of  the  [crime  of  house-breaking]; 

and  for  so  doing  this  shall  be  your  warrant.     Witness  my  hand,  this 

day  of  in  the  year  ." 

Art.  642.  Complaint   by  a  person   incapable  of  giving  testimony. 

"  Be  it  remembered,  that  on  this  day  of  before 

me,  G.  P.,  one  of  the  associate  judges  of  the  city  of  New  Orleans,  ap- 
peared [Robert,  a  mulatto  slave,  late  belonging  to  J.  S.  deceased],  who 
declared,  that  last  night,  at  about  eleven  o'clock,  two  white  men,  who 
were  at  work  on  the  plantation  of  the  said  J.  S.,  entered  his  chamber, 
when  he  was  in  bed,  and  with  an  axe  gave  him  several  mortal  wounds, 
of  which  he  soon  after  died  ;  that  he,  the  appearer,  came  into  the 
chamber  and  saw  the  last  blow  given,  immediately  after  which  the 
said  persons  fled  ;  that  their  names  were  G.  H.  and  I.  K. — the  first  a 
very  tall  spare  man,  about  thirty  years  of  age — and  the  other  short, 
and  about  the  age  of  sixty  ;  that  a  free  mulatto  man,  named  John 
Clark,  also  saw  the  stroke  given,  and  endeavoured,  with  the  deponent, 
to  arrest  the  murderers,  but  that  they  could  not  effect  it  ;  and  that  the 
said  John  Clark  refused  to  accompany  this  appearer  to  make  com- 
plaint." 

Art.  643.  Ex  officio  complaint  by  the  public  prosecutor. 

"  Be  it  remembered,  that  on  the  day  of  in 

the  year  ,  before  me,  J.  P.  &c.   came  J.  P.,  attor- 

ney-general of  the  state,  who  gave  me  to  understand,  that  he  had 
reason  to  believe  that  [  A.  B.  and  C.  D.  would,  if  examined,  prove 
that  the  offence  of  giving  and  receiving  a  challenge  to  fight  a  duel  had 
been  lately  committed  by  E.  F.  and  G.  H.  of  the  city  of  New  Or- 
leans, respectively];  he  therefore  required,  that  a  citation  should  be 
issued  to  the  said  A.  B.  and  C.  D.  to  appear  and  testify  what  they 
know  in  the  premises." 

Art.  644.  Form  of  an  accusation  where  the  defendant's  name  is  not 
known. 

"  Be  it  remembered,  that  on  the  day  of  in  the 


COtfE  OF  PROCEDURE.  579 

year  ,  before  me,  G.  P.,  one  of  the  justices  of  the  peace, 

&c.  personally  appeared  A.  B.  of  the  said  city,  who  on  his  oath  de- 
clared, that  on  [this  day,  at  nine  o'clock  in  the  morning,  he  was 
attacked  in  the  high  road  in  this  parish,  and  by  violence  was  robbed 
of  ten  dollars  in  silver  and  a  gold  watch,  which  were  taken  from  his 
person  by  a  man  unknown  to  the  deponent,  with  red  hair,  and  a  large 
scar  over  his  left  eye,  marked  with  the  small  pox,  and  appearing  to 
be  about  six  feet  high,  and  dressed  in  a  sailor's  jacket  and  trousers."] 


CHAPTER  II. 


Forms  of  proceeding  in  offences  against  the  sovereign  power  of  the 
state,  from  the  complaint  to  the  indictment  ;  but  applicable  in 
the  formal  parts  to  the  other  offences  mentioned  in  this  title. 

Art.  645.  Form  of  an  accusation  of  sedition. 

"Be  it  remembered,  [as  in  the  above  form],  who  on  his  oath  de- 
clared, that  J.  S.  [of  the  parish  of  St  Mary's,  now  in  this  city,  hath 
enlisted  in  this  city  more  than  one  hundred  men,  and  arrayed  and 
furnished  them  with  arms],  for  the  purpose  of  subverting  and  chang- 
ing the  constitution  of  the  state  by  force  of  arms,  [so  as  to  abolish  the 
senate  and  make  other  changes  in  the  said  constitution  ;  that  the  de- 
ponent was  applied  to  by  the  said  J.  S.  to  enlist  for  the  purpose 
aforesaid,  and  saw  him  enlist  ten  other  persons,  to  whom  he  gave  arms 
in  the  presence  of  the  deponent."] 

Art.  646.   Form  of  complaint  lor  exciting  sedition  by  a  writing. 

"  That  J.  S.  of  this  city  has  confessed  himself  as  the  author  and 

publisher  of  a  writing,  published  in  handbills  in  this  city  on  or  about 
the  day  of  last,  a  copy  of  which  is  hereunto 

annexed,  by  which  he  excites  the  people  of  this  city  to  resist,  by  force, 
the  execution  of  a  constitutional  law  of  the  state,  that  is  to  say,  [to 
resist  the  execution  of  an  act  imposing  a  tax  on  the  real  estate  in  this 
city,  passed  the  day  of  .]" 

Art.  647.  Complaint  for  exciting  insurrection,  by  joining  a  meet- 
ing of  slaves  with  design  to  promote. 

"  That  J.  S.  on  the  day  of  was  present  at  a 

meeting  of  slaves  held  in  this  city,  at  which  meeting  an  insurrection 
of  the  slaves  against  the  free  inhabitants  of  this  state  was  planned, 
with  design  to  promote  such  insurrection  ;  that  the  deponent  was  con- 
cealed and  heard  the  said  J.  S.  persuade  the  said  slaves  then  present 
to  attempt  such  insurrection  by  [seizing  the  arms  in  the  city  and  the 
powder-magazine  on  the  other  side  of  the  river."] 

Art.  648.  Complaint  for  designedly  using  language  calculated  to 
make  the  slaves  discontented  with  their  state. 

— - — "  That  J.  S.  in  a  discourse  addressed  himself  to  a  number  of 
slaves  assembled  in  the  street  of  the  Esplanade,  on  Sunday,  the 
day  of  last,  in  the  hearing  of  the  deponent, 

and  used  the  following  words,  or  words  to  the  same  effect — 'Poor 
fellows !  you  serve  hard  masters  in  this  country — you  can  never  know 


580  CODE  OF  PROCEDURE. 

the  blessings  of  liberty — your  life  is  a  life  of  misery' — with  intent  to 
render  the  said  slaves  discontented  with  their  state  of  slavery." 

Art.  649.  Warrant  of  arrest  in  sedition,  on  the  above  accusation. 

"By  G.  P.  one  of  the  associate  judges  of  the  city  court  of  New 

Orleans.     To  the  sheriff  of  the  said  city. 

"You  are  commanded  forthwith  to  arrest,  and  bring  before  me,  J.  S., 
of  the  parish  of  St.  Marys,  charged  on  oath  with  sedition  in  enlisting 
men  and  furnishing  arms,  for  the  purpose  of  subverting  the  constitution 
of  the  state  by  force — that  he  may  be  examined  and  dealt  with  accord- 
ing to  law.  Given  under  my  hand,  the  day  of  in  the 
year  ." 

Art.  650.  Examination  of  the  prisoner. 

"Be  it  remembered,  that  on  the  day  of  in  the 

year  J.  S.  being  brought  before  me,  on  my  warrant,  issued 

on  the  complaint  of  A.  B.  on  a  charge  of  [sedition  in  attempting  to 
subvert  the  constitution  of  the  state  by  force  of  arms,]  I  did,  according 
to  law,  inform  him  of  the  nature  of  the  accusation  against  him,  and 
read  to  him  the  examinations  of  the  witnesses  which  had  then  been 
taken  ;  who,  that  is  to  say,  I.  K.  and  H.  H.,  were  at  his  request  sum- 
moned and  were  cross  examined  by  him,  as  appears  by  the  said  exam- 
inations hereunto  annexed  ;  and  I  did  then  inform  him,  that  although  he 
was  at  liberty  to  answer  the  questions  I  was  about  to  put  to  him  in 
what  manner  he  thought  proper,  or  not  answer  them  at  all,  yet  a  depar- 
ture from  the  truth,  or  a  refusal  to  answer  without  assigning  a  sufficient 
reason,  must  operate  as  a  circumstance  against  him  as  well  on  the  ques- 
tion of  commitment  as  of  his  guilt  or  innocence  on  the  trial.  I  then 
put  to  him  the  following  interrogatories  : 

1.  What  is  your  name  and  age  ? 

To  which  he  answered,  [<  My  name  is  J.  S.  and  I  am  twenty-five 
years  of  age.]' 

2.  Where  were  you  born  ? 

To  which  he  answered,  [<  in  the  city  of  New  Orleans.]' 

3.  Where  do  you  reside,  and  how  long  have  you  resided  there  ? 
[Insert  answer.] 

4.  What  is  your  business  or  profession  ? 
[Insert  answer.] 

5.  Do  you  know  the   persons  who  have  been  sworn  as  witnesses  on 
the  part  of  the  accusation,  or  any,  and  which  of  them,  and  how  long 
have  you  known  them  ? 

To  which  he  answered,  &c. 

6.  Where  were  you  at  the  time  the  act  of  which  you  are  accused  is 
stated  by  the  witnesses  to  have  taken  place  ? 

To  which  he  answered,  [( I  was  at  the  town  of  Natchez.]' 

7.  Give  any  explanation  you  may  think  proper  of  the  circumstancevS 
appearing  on  the  testimony  against  you,  and  state  any  facts  that  you 
think  will  tend  to  your  exculpation. 

To  which  he  said,  [state  the  answers  of  the  defendant.] 

G.  P.  Judge,'7  &c. 

Art.  651.  If,  after  examination  and  hearing  evidence,  the  magistrate 
shall  think  there  is  not  reasonable  ground  for  committing  the  defendant, 
he  shall  write  on  the  warrant,  immediately  after  the  return,  "Let  the 
within  named  J.  S.  be  discharged,  the  evidence,  on  examination, 
not  being  sufficient  for  commitment,"  and  shall  then  sign  the  same 


CODE  OF  PROCEDURE.  581 

Art.  652.  Commitment  when  the  evidence  warrants  it. 
«  By  G.  P.,  one  of  the  associate  judges  of  the  city  of  New  Orleans. 
To  the  keeper  of  the  prison  of  the  city  of  New  Orleans. 

"  Receive  into  your  custody,  J.  S.  herewith  delivered  to  you, 
charged,  on  oath  before  me,  [with  the  crime  of  sedition,  by  enlisting 
men  and  furnishing  them  with  arms  for  the  purpose  of  subverting  the 
constitution  of  this  state  by  force  of  arms  ;]  and  him  safely  keep  until 
he  shall  be  legally  discharged.  Witness  my  hand,  this 
day  of  in  the  year  ." 

Art.  653.  When  the  offence  is  bailable  of  right,  or  the  proof  in  a  case 
not  bailable  of  right  is  not  evident,  nor  the  presumption  strong,  the  de- 
fendant must  be  bailed,  if  he  offer  good  security  ;  which  is  done  in  the 
following  form  : 

"  We,  J.  S.  as  principal,  and  G.  P.  and  I.  D.  as  securities,  do  ac- 
knowledge that  we  are  indebted,  in  solido,  to  the  state  of  Louisiana  in 
the  sum  of  to  be  paid  if  the  said  J.  S.  should  not  appear 

at  the  next  [criminal  court,]  to  be  held  at  [the  city  of  New  Orleans,] 
on  the  day  of  next,  to  answer  those  things  that 

shall  be  objected  to  him,  and  particularly  to  a  charge  of  [sedition] 
whereof  he  is  accused,  and  to  abide  the  orders  of  such  court  ;  but  if  he 
should  so  appear* and  abide,  then  this  recognizance  to  be  void.  Wit- 
ness our  hands,  this  day  of  in  the  year  ." 

Art.  654.  The  witnesses  are  also  to  enter  into  recognizance  in  the 
following  form  : 

"I,  A.  B.,  acknowledge  that  I  am  indebted  to  the  state  of  Louisia- 
na in  the  sum  of  to  be  paid  if  I  should  not  appear  at  the 
next  [criminal  court,]  to  be  held  in  the  city  of  New  Orleans,  on  the 
day  of  next,  to  give  testimony  in  an  accusation 
against  J.  S.  for  sedition,  and  to  abide  the  order  of  the  court ;  but  if  1 
so  appear  and  abide,  this  recognizance  to  be  void.  Witness  my  hand, 
this  day  of  -.••.  in  the  year  ." 

Art.  655.  If  any  witness  should  refuse  to  sign  such  recognizance,  he 
may  be  committed  by  the  magistrate  in  the  following  form  : 

"By  G.  P.  &c.  [as  above.]     To  the  keeper,  &c.  [as  above.] 

"  Receive  in  your  custody,  A.  B.  herewith  delivered  to  you,  he  hav- 
ing refused  to  enter  into  recognizance  to  appear  and  give  testimony 
[against  J.  S.  on  a  charge  of  sedition]  ;  and  him  safely  keep  until  he 
shall  enter  into  such  recognizance  before  me,  or  some  other  magistrate, 
or  shall  be  otherwise  released  by  law.  Witness,"  &c. 

Art.  656.  If  any  one  shall  make  oath,  that  another  is  a  material 
witness  on  behalf  of  the  prosecution  in  a  case  of  CRIME,  and  that  there 
is  good  reason  to  believe  that  he  intends  to  depart  the  state,  or  other- 
wise to  avoid  attendance  on  the  trial,  the  magistrate  may  direct  him  to 
find  security  to  be  recognized  with  him  for  his  appearance  to  testify  ; 
and  on  his  refusal,  or  inability  to  do  so,  may  commit  him  by  an  order 
in  the  form  of  that  prescribed  by  the  last  article,  altering  only  the  cause 
of  commitment  according  to  the  circumstances  of  the  case. 

Art.  657.  Any  one  committed  under  the  last  article,  for  inability  to 
find  security,  shall  receive  out  of  the  recompense  fund,  on  the  warrant 
of  the  judge,  a  compensation  for  the  time  he  is  imprisoned,  to  be  cal- 
culated according  to  the  rules  established  for  compensation  to  persons 
acquitted. 

Art.  658.   The  forms  and  the  provisions  of  the  ten  last  preceding 


582  CODE  OF  PROCEDURE. 

articles  apply  to  all  prosecutions,  (changing  the  description  of  the  of- 
fence where  it  occurs  in  any  of  the  said  forms). 

Art.  659.  Form  of  indictment  for  sedition. 

The  beginning  and  conclusion  shall  be  according  to  the  form  prescrib- 
ed in  the  chapter  ofjthis  code,  entitled  "  Of  indictments  and  informa- 
tions." 

The  charge  in  this  offence  shall  be  "did  [design  and  attempt  to  sub- 
vert the  constitution  of  this  state  by  force  of  arms  ;  and  did,  on  the 
day  and  year  and  at  the  place  aforesaid,  enlist  one  hundred  men,  to  the 
jurors  unknown,  and  furnish  them  with  arms,  for  the  purpose  of  chang- 
ing and  subverting  the  constitution  by  force  of  arms,"  &c.  ] 

Art.  660.  Another  charge  for  the  same. 

"  Did  design  and  attempt,  by  force  of  -arms,  to  dismember  the 

state  by  [forming  a  government,  in  defiance  of  the  authority  of  the 
state,  in  that  part  of  the  same  lying  west  of  the  Mississippi  river,  and 
for  that  purpose,  on  the  day  and  year  and  at  the  place  aforesaid,  collect- 
ed an  assemblage  of  men  armed  and  arrayed,]  with  the  intent  of  car- 
rying such  design  into  effect  by  force  of  arms,  and  so  the  jurors  say," 
&c. 

Art.  661.  The  form  of  commitment  on  the  accusation  for  exciting 
the  people  to  resist  the  execution  of  the  laws  or  commit  sedition,  is  the 
same  as  that  given  above  for  sedition,  except  the  charge,  which  is 
"  charged  on  oath,  before  me,  of  having  published  a  writing  exciting 
the  people  of  the  city  of  New  Orleans  to  [resist  the  legal  execution  of  a 
constitutional  law  of  this  state  for  the  levying  a  tax  in  the  said  city]  ; 
or,  [to  dismember  the  state  by  force  of  arms] ;  or,  [to  subvert  the  con- 
stitution of  the  state  by  force  of  arms."] 

Art.  662.  The  form  of  examination,  summons,  and  proceedings 
against  witnesses,  and  recognizance,  are  the  same,  for  this  offence,  and 
for  the  offences  hereafter  mentioned  in  this  chapter,  as  those  before 
contained  in  this  chapter,  changing  only  the  names  and  description  of 
the  offences  where  they  occur. 

Art.  663.  Form  of  the  charge  in  the  indictment  for  exciting  the 
people  to  commit  sedition. 

The  formal  parts  are  the  same  in  all  cases. "That  J.  S.  on  the 

day  of  in  the  year  ,  at  the  parish  of  New  Orleans, 

did  excite  the  people  of  the  city  of  New  Orleans  to  resist,  by  force,  the 
legal  execution  of  a  constitutional  law  of  this  state,  entitled,  'an  act  for 
levying  a  tax  on  the  real  property  in  the  city  of  New  Orleans,'  by  a 
certain  writing  printed  and  published  by  him,  of  which  the  following 
is  a  copy,[insert  the  particulars];  contrary,"  &c. 

Art.  664.  When  the  charge  is  of  a  verbal  excitement,  instead  of  "  by 
a  certain  writing,"  in  the  indictment  insert  ["  by  using  these  express- 
ions, addressed  to  a  number  of  inhabitants  of  the  said  city  assembled  to 
prepare  a  petition  against  the  said  tax,  '  We  are  fools  to  think  of  pe- 
titioning. Let  us  do  ourselves  justice.  Take  arms  and  put  any  offi- 
cer to  death  who  will  attempt  to  levy  the  tax.  I  will  be  the  first  to 
set  the  example.'  Thereby  verbally  counselling  and  exciting  the  peo- 
ple of  the  city  of  New  Orleans,  a  part  of  the  people  of  the  state,  to 
resist  the  legal  execution  of  the  said  constitutional  law]  ;  contrary," 
&c.  And  in  the  commitment,  instead  of  the  words  "having  published 
a  writing,"  &c.  insert  "  having  used  a  verbal  discourse,"  &c. 

Art.  665.  Commitments  for  offences  under  the  chapter  in  the  Code 
of  Crimes  and  Punishments,  relating  to  "  Exciting  Insurrection." 


CODE  OF  PROCEDURE.  583 

"  Charged  on  oath,  before  me,  with  having  [.aided  in  an  insur- 
rection of  the  slaves  against  the  free  inhabitants  of  this  state],  or  [hav- 
ing joined  a  secret  assembly  of  slaves,  in  which  an  insurrection  of  the 
slaves  against  the  free  inhabitants  of  this  state  was  planned;  with  de- 
sign to  promote  such  insurrection];  or,  [having  persuaded  and  excited 
the  slaves  to  attempt  an  insurrection  against  the  free  inhabitants  of  this 
state];  or,  [having  used  language  calculated  to  make  the  slaves  discon- 
tented with  their  state,  with  design  to  promote  such  discontent] ;  con- 
trary," &c. 

Art.  666.  Charge  in  the  indictment  for  offences  mentioned  in  the 
last  article. 

" "  Did  [aid  in  an  insurrection  of  slaves  against  the  free  inhabi- 
tants of  this  state,  by  providing  the  said  slaves  with  arms  and  ammu- 
nition to  forward  the  purposes  of  the  said  insurrection];  or,  [did  join 
a  secret  assembly  of  slaves,  held  in  the  parish  aforesaid,  in  which  as- 
sembly an  insurrection  of  slaves  against  the  free  inhabitants  of  this 
state  was  planned,  with  design  to  promote  the  same]  ;  or,  [did  excite 
and  persuade  certain  slaves  in  the  said  parish,  to  the  jurors  unknown, 
to  attempt  an  insurrection  against  the  free  inhabitants  of  this  state];  or, 
[did  use  language  to  certain  slaves,  to  the  jurors  unknown,  calculated 
to  make  them  discontented  with  their  state,  by  saying  to  them,  •  Poor 
fellows/  &c.  or  words  to  that  effect,  [as  in  the  affidavit],  with  design 
to  promote  such  discontent."] 


CHAPTER  III. 

Of  the  forms  of  complaint)  warrant  of  arrest,  commitment,  and 
indictment,  on  prosecution  for  offences  against  the  legislative 
power. 

Art.  667.  Complaint  for  preventing  the  house  of  assembly  from 
meeting,  &c. 

"  Be  it  remembered,  &c.  [as  in  the  preceding  forms  of  complaint] 
that  A.  B.  [on  the  first  day  of  February  now  last  past,  at  nine  o'clock 
in  the  morning,  came  to  the  government-house  of  the  state,  situate  in 
the  city  of  New  Orleans,  followed  by  a  guard  of  soldiers,  and  placed  a 
soldier  at  each  door  of  the  chambers  usually  occupied  by  the  house  of 
representatives  of  the  said  state,  and  gave  orders  to  such  soldier  not  to 
permit  any  one  to  pass  into  the  said  chamber  ;  and  this  deponent  fur- 
ther saith,  that  the  house  of  representatives  had  adjourned  on  the  twen- 
ty-ninth day  of  January  last  to  meet  on  the  said  first  day  of  February, 
at  ten  o'clock  in  the  morning  ;  and  that  this  deponent  being  a  member 
of  the  said  house,  as  well  as  a  majority  of  the  members  thereof,  pre- 
sented themselves  about  the  said  hour  to  enter  into  the  said  chamber, 
but  that  they  were  by  force  of  arms  prevented  by  the  said  soldiers 
under  the  command  of  the  said  J.  S.,  and  that  the  said  house  of  repre- 
sentatives did  not  and  could  not  meet  that  day." 

Art.  668.  In  like  manner  when  the  complaint  is  of  any  of  the 
offences  created  by  the  third  title  of  the  second  book  of  the  Code  of 
Crimes  and  Punishments,  relating  to  "Offences  against  the  legislative 
powers,"  state  the  circumstances  thereof  in  the  complaint  particularly. 


584  CODE  OF  PROCEDURE. 

Art.  669.  Form  of  charge  in  the  warrant  of  arrest  on  the  above  com- 
plaint. 

"  Charged  on  oath,  before  me,  with  [having  designedly  and  by 

force  prevented  the  house  of  representatives  of  this  state  from  meet- 
ing."] 

Art.  670.  The  charge  in  the  commitment  for  this  offence,  is  the  same 
as  that  directed  for  the  warrant  of  arrest. 

Art.  671.  Charge  in  the  indictment. 

"  [Did  designedly  and  by  force  prevent  the  house  of  repre- 
sentatives, being  one  of  the  houses  composing  the  general  assembly  of 
this  state,  from  meeting]  ;  or  according  to  the  fact  stated  in  the  com- 
plaint, [did  with  intent  to  prevent  the  meeting  of  the  house  of  repre- 
sentatives of  this  state,  being  one  of  the  houses  composing  the  general 
assembly  of  this  state,  by  the  use  of  personal  violence  offered  to  A.  B., 
C.  D.  and  E.  F.,  members  of  the  said  house  of  representatives,  pre- 
vent them  from  attending  the  said  house]  ;  or,  [did  by  force  and  the 
threats  thereof  force  the  senate]  [or  the  house  of  representatives],  being 
one  of  the  branches  of  the  general  assembly  of  the  state  of  Louisiana, 
then  and  there  in  session,  to  adjourn  [or  disperse],  or  [to  pass  a  law, 
entitled  an  act,  &c.]  giving  the  title  ;  or  [to  reject  an  act,  entitled  an 
act,  &c.  which  they  constitutionally  might  have  passed]  ;  or,  [did 
threaten  A.  B.  then  a  member  of  the  house  of  representatives,  that  he, 
the  said  J.  S.,  would  beat  and  otherwise  ill  treat  him,  unless  he  voted 
for  the  passage  of  a  bill  then  before  the  said  house,  entitled  an  act,  &c. 
with  intent  to  influence  his  official  conduct  as  a  member  of  the  said 
house  of  representatives]  ;  or,  [did  make  an  assault  upon  A.  B.  late  a 
member  of  the  house  of  representatives,  and  did  beat  and  ill  treat  him 
in  consequence  of  the  conduct  of  the  said  A.  B.  while  he  was  a  mem- 
ber of  the  said  house];  or  [did  offer  to  bribe  A.  B.  then  a  member  of 
the  house  of  representatives  of  this  state,  by  promising  that  if  the  said 
A.  B.  would  vote  for  the  passage  of  a  certain  law  then  under  conside- 
ration in  the  said  house,  entitled  "  an  act  for  incorporating  an  insurance 
company  called  the  Safety  Company,"  he  the  said  A.  B.  should  have 
ten  shares  in  the  stock  of  the  said  company];  or,  [did  bribe  A.  B.  a 
member  of  the  house  of  representatives  of  this  state,  by  transferring  to 
him  ten  shares  in  the  stock  of  an  insurance  company  called  the  Safety 
Company,  as  an  inducement  to  the  said  A.  B.  to  vote  for  an  act  then 
before  the  said  house  for  continuing  the  charter  of  the  said  company]; 
or,  [did  offer  to  one  C.  D.  the  sum  of  one  thousand  dollars,  (or  the  right 
to  subscribe  ten  shares  in  a  certain  bank,  called  the  Fog  Bank,  when 
the  said  bank  should  be  incorporated),  for  the  purpose  of  securing  his, 
the  said  C.  D.'s  interest  with  the  general  assembly,  or  with  some  mem- 
bers thereof,  in  order  to  procure  an  act  incorporating  the  said  bank]; 
or,  [that  the  said  J.  S.  on  the  day  of  in  the  year 
at  the  parish  of  New  Orleans,  did  receive  from  A.  B.  the  sum 
of  or  the  promise  of  ten  shares  in  the  Fog  Bank,  as  a 
compensation  for  exerting  his  influence  with  the  general  assembly  to 
pass  an  act  incorporating  the  said  bank];  or,  [that  A.  B.  being  a  mem- 
ber of  the  house  of  representatives  of  the  state  of  Louisiana,  did  on  the 
day  of  in  the  year  at  the  city  of  New  Or- 
leans, receive  from  J.  S.  a  transfer  of  ten  shares  in  a  certain  bank  called 
the  Specie  Bank,  as  the  consideration  for  a  promise  then  and  there 
made  by  him  the  said  A.  B.  to  vote  for  the  passage  of  a  law  then  pend- 
ing before  the  said  house,  entitled  an  act,  &c.]  contrary  to  the  laws,"  &c. 


CODE  OF  PROCEDURE.  585 


CHAPTER  IV. 


Forms  for  prosecution  of  offences  against  the  executive  power. 

Art.  672.  Complaint  against  officers. 

"  To  A.  B.  justice  of  the  peace,  &c. 

"  C.  D.  being  duly  sworn  says,  [that  E.  F.  lately  appointed  to  the 
executive  office  of  inspector  of  flour  in  the  city  of  New  Orleans,  on  the 
day  of  in  the  year  ,  at  the  city  of  New  Orleans, 

performed  an  official  act  by  inspecting  and  marking  one  hundred  bar- 
rels of  flour  for  G.  H.  of  the  said  city,  merchant,  he  the  said  E.  F.  not 
having  then  taken  the  oath  of  office  required  by  law."] 

"  Sworn,"  &c. 

Art.  673.   Citation  to  E.  F. 

"You  are  cited  to  appear  before  rne  A.  B.  justice  of  the  peace,  &c. 
on  the  day  of  next,  at  ten  o'clock  in  the  morning,  to 

answer  to  a  complaint  entered  against  you  for  having,  as  inspector  of 
flour  for  the  city  of  New  Orleans,  inspected  and  marked  one  hundred 
barrels  of  flour,  before  you  had  taken  the  oath  of  office  required  by  law." 

Art.  674.  Charges  in  indictments  for  offences  under  this  title. 

"Did  offer  the  sum  of  one  hundred  dollars  to  A.  B.  register  of 

mortgages,  to  induce  him  to  give  a  certificate  that  a  certain  parcel  of 
land,  belonging  to  him  the  said  ,  was  free  from  incumbrance, 

when,  in  fact,  the  same  was  incumbered  to  a  large  amount." 

"  Did  by  threats  of  violence  to  the  person  of  A.  B.  [one  of  the 

constables  of  the  city  of  New  Orleans,]  force  him  [to  make  an  arrest 
of  one  A.  B.  without  any  warrant  or  other  legal  authority,"  &c.] 

"Did  attempt  to  force,"  [as  in  the  preceding  form.] 

"Did  by  force  resist  and  attempt  to  prevent  A.  B.  [a  notary 

public,  from  entering  on  his  minutes  an  act  of  sale  legally  made  by 
I.  K.  to  L.  M."  describing  it] 

"  Did,  he  being  then  a  [notary  public],  receive  the  sum  of  [one 

hundred  dollars]  from  A.B.  as  a  bribe  for  [making  an  entry  in  the 
register  of  his  office  of  a  sale  made  to  him  the  said  A.  B.  by  C.  D.  as  of 
a  date  prior  to  the  true  time  of  recording  the  same." 

"Did,  he  being  then  legally  appointed  and  exercising  the  office 

[of  inspector  of  tobacco],  extort  and  receive  from  one  A.  B.  the  sum  of 
[ten  dollars  for  inspecting  five  hogsheads  of  tobacco],  being  more  than 
is  allowed  by  law  for  performing  such  service];  or  [for  doing  any  act 
(describing  it)  which  he  was  by  law  obliged  to  perform,  and  for  which 
no  remuneration  is  given  by  law] — that  he  did  extort  and  receive  ten 
dollars  when,  in  fact,  he  had  not  made  such  inspection;  or  [did  receive 
the  sum  of  ten  dollars  for  inspecting  five  hogsheads  of  tobacco],  being 
more  than  the  sum  allowed  by  law  for  that  service,  which  were  volun- 
tarily given  to  him  by  one  A.  B.  for  [making  such  inspection."] 

"  Did  receive  [the  sum  of  ten  dollars]  from  one  A.  B.  for  re- 
fraining from  [condemning  ten  hogsheads  of  tobacco],  which  he  was 
not  authorized  by  law  to  [condemn],  and  which  sum  the  law  did  not 
authorize  him  to  receive." 
3  Y 


586  CODE  OF  PROCEDURE. 

"  Being  an  executive  officer,  to  wit,  a  notary  for  the  city  of  New 

Orleans,  he  negligently  [or  intentionally,  as  the  case  may  be]  omitted 
[to  enter  on  his  register  a  certain  act  of  sale,  under  private  signature 
made,  &c.  (describing  it)  which  was  acknowledged  and  left  with  him 
for  that  purpose],  by  which  omission  such  an  injury  accrued  to  the  said 
as  would  entitle  him  to  a  civil  action  against  the  said  E.  F." 

"Being  [sheriff  of  the  city  and  parish  of  ]  did,  under 

pretence  of  performing  the  duties  of  his  office,  [arrest  one  A.  B.  and 
keep  him  in  prison  from  the  said  day  until  the  day  of  the 

same  month],  he  the  said  E.  F.  falsely  pretending  that  he  had  a  [writ 
or  other  process  for  arresting  and  detaining  the  said  A.  B."] 


CHAPTER  V. 


Forms  relating  to  offences  against  the  judiciary  power. 

Art.  675.  Form  of  information  against  a  judge  or  juror  for  receiving 
a  bribe. 

"  That  J.  S.  had  a  cause  pending  in  the  court  of  this  parish, 

against  the  deponent,  which  was  tried  by  [the  court  or  a  jury,  as  the 
ca~se  may  be],  and  that  the  said  J.  S.  on  the  day  of  ,  during 

the  pendency  of  the  said  suit,  gave  to  A.  B.  [the  judge  of  the  said  court, 
or  a  juror  summoned  to  try  the  said  cause]  a  promise  in  writing  to  pay 
to  the  said  A.  B.  the  sum  of  one  thousand  dollars  when  he  the  said  J.  S. 
should  obtain  judgment  (or  a  verdict)  in  the  said  cause];  which  written 
promise  the  said  A.  B.  then  and  there  received,  and  did  promise  to 
give  a  judgment  (or  verdict)  for  the  said  J.  S.  against  the  deponent." 

Art.  676.  Commitment  thereon. 

"  Charged  on  oath  with  having,  as  judge  of  or  as  juror, 

received  a  bribe  from  one  J.  S.  in  a  suit  between  him  and  one  C.  D." 

Art.  677.  Indictment. 

"That  A.  B.  being  appointed  to  the  office  of  [parish  judge  of 

the  parish  of  L.]  and  exercising  the  duties  of  that  office,  did  on  the 
day  of  ,in  the  year  ,  at  the  parish  aforesaid,  [receive 

from  one  J.  S.,  who  then  had  a  suit  pending  undetermined  in  the  said 
court,  a  written  promise  to  pay  to  him  the  said  judge  the  sum  of 
dollars  in  case  the  said  suit  should  be  determined  in  favour  of  the  said 
J.  S.]  as  a  bribe  to  influence  the  official  conduct  of  him  the  said  A.  B." 

Art.  678.  Complaint  for  corrupt  or  malicious  conduct,  not  amount- 
ing to  bribery. 

"  That  A.  B.  being  appointed  [parish  judge  of  the  parish  of  L.] 

and  exercising  the  duties  of  that  office,  on  the  day  of  in 

the  year  ,  at  the  said  parish  of  L.  with  design  to  injure  this  depo- 

nent, and  maliciously  to  have  him  declared  an  insolvent  debtor,  and  by 
a  forced  surrender  to  deprive  him  of  the  possession  of  his  property,  did 
persuade  one  C.  D.  of  the  said  parish,  a  creditor  of  the  deponent,  to 
present  a  petition  for  a  forced  surrender  against  the  deponent,  to  him 
the  said  C.  D.,  alleging  in  such  petition  that  the  deponent  had  suffered 
his  notes  to  be  protested,  and  had  committed  other  acts  of  bankruptcy, 
which  petition  the  said  C.  D.  did  present,  but,  although  he  did  not 


CODE  OF  PROCEDURE.  587 

make  oath  to  the  truth  of  such  petition,  or  give  any  other  proof  thereon, 
the  said  A.  B.,  under  colour  of  his  office,  ordered  a  provisional  seizure 
to  be  made  of  the  deponent's  property,  and  other  proceedings  to  be  had 
as  in  case  of  a  forced  surrender  against  him." 

Art.  679.  The  same  transaction  may  be  stated  to  be  corruptly  done, 
alleging  the  motive  instead  of  a  desire  to  injure,  to  be  that  of  securing 
some  emolument  or  advantage  to  himself,  [describing  it],  or  to  another, 
(by  giving  him  the  management  of  the  estate  at  Syndic,  or  some  other 
means.) 

Art.  680.  Warrant  and  commitment. 

"Charged  on  oath,  with  having  officially  as  parish  judge  [or 

maliciously]  granted  an  order  of  seizure,  as  in  case  of  a  forced  sur- 
render, against  C.  D."  , 

Art.  681.  Indictment. 

"  That  A.  B.  being  appointed  to  the  office  of  [parish  judge  of 

the  parish  of  L.]  and  exercising  the  duties  of  that  office,  on  the 
day  of  in  the  year  ,  at  the  said  parish  of  L.,  did  [corruptly, 

for  the  purpose  of  securing  emolument  to  himself,  or  to  another,  stating 
what  emolument,  as  the  case  may  be],  or  [maliciously,  for  the  purpose 
of  injuring  one  C.  D.,  grant  under  colour  of  his  office,  but  in  a  manner 
unauthorized  by  law,  an  order  of  seizure,  as  in  a  forced  surrender, 
against  one  C.  D." 

Art.  682.  Complaint  of  an  offer  to  bribe. 

"That  the  deponent  is,  and  since  the  day  of  last, 

has  been  clerk  of  the  parish  court  of  the  parish  of  L.,  and  that  C.  D.  of 
the  said  parish,  on  the  day  of  in  the  year  ,  in  the 

parish  aforesaid,  offered  to  the  deponent  that  if  the  deponent  would 
permit  him  the  said  C.  D.  to  alter  a  certain  record  of  a  judgment  ob- 
tained in  the  said  court,  and  then  in  the  official  custody  of  the  deponent, 
[describing  it,]  by  erasing  the  word  "  hundred,"  and  .inserting  the 
word  "thousand"  instead  thereof,  he  would  give  to  the  deponent  the 
sum  of  three  hundred  dollars,  which  the  deponent  refused  to  do." 

Art.  683.  Warrant  of  arrest  and  commitment. 

"  Charged  on  oath,  with  having  offered  to  bribe  A.  B.  clerk 

of  the  parish  court  of  the  parish  of  L." 

Art.  684.   Indictment. 

"  That  one  A.  B.  having  been  before  the  day  of 

in  the  year  ,  legally  appointed  clerk  of  the 

parish  court  of  the  parish  of  L.,  and  being  on  that  day  in  the  legal 
exercise  of  the  duties  of  the  said  office,  one  C.  D.  of  the  said  parish, 
on  the  day  and  year  and  in  the  parish  aforesaid,  did  offer  to  give  to  the 
said  A.  B.  three  hundred  dollars  as  a  bribe,  if  he  would  permit  him 
the  said  C.  D.  to  alter  the  record  of  a  judgment  entered  in  the  said 
court  in  favour  of  the  said  C.  D.  against  one  E.  F.,  for  five  hundred 
dollars,  by  erasing  in  the  said  record  the  word  "hundred"  and  insert- 
ing in  the  place  thereof  the  word  "  thousand,"  so  as  to  falsify  and 
forge  the  said  record,  and  make  it  appear  to  be  a  judgment  for  five 
thousand  dollars."] 

Art.  685.   Complaint  of  forcible  opposition  to  an  officer  of  justice. 

— -«  That  the  deponent  is  [sheriff  of  the  parish  of  L.  and  was  so 
on  the  day  of  last,  that  having  in  his  hands 

a  warrant  in  due  form  of  law,  issued  by  G.  P.  one  of  the  justices  of 
the  peace  for  the  said  parish,  to  arrest  one  E.  F.  charged  with  the 


588  CODE  OF  PROCEDURE. 

crime  of  forgery,  and  being  about  to  execute  the  said  warrant  on  the 
said  E.  F.,  who  was  then  in  the  house  of  &.  H.  in  the  said  parish, 
he  was  by  force  of  arms  opposed  by  I.  K.  and  L.  M.  in  the  lawful 
execution  of  the  said  official  act,  and  prevented  by  force  from  entering 
the  said  house  to  search  for  and  arrest  the  said  E.  F.  they  the  said 
I.  K.  and  L.  M.  knowing,  at  the  same  time,  the  office  of  the  depo- 
nent and  his  authority  to  make  the  said  arrest."] 

Art.  686.  Warrant  for  arrest  and  commitment. 

"  Charged  with  having  forcibly  opposed  A.  B.  sheriff  of  the 

parish  of  L.  in  the  lawful  execution  of  an  official  duty." 

Art.  687.  Indictment. 

"  Did  by  force  oppose  A.  B.  then  being  sheriff  of  the  said  parish 

of  L.  in  the  lawful  execution  of  an  official  act,  that  is  to  say,  by  forci- 
bly preventing  him  from  making  the  arrest  of  one  E.  F.  by  virtue  of  a 
warrant  in  due  form  of  law,  issued  by  G.  P.  one  of  the  justices,  &c. 
commanding  the  said  sheriff  to  arrest  the  said  E.  F.  and  bring  him 
for  examination,  on  a  charge  of  forgery,  they  the  said  I.  K.  and  L. 
M.  well  knowing  that  the  said  A.  B.  was  sheriff  of  the  said  parish,  and 
had  legal  authority  to  make  the  said  arrest." 

Art.  688.  Complaint  where  the  opposition  was  made  in  a  case  when 
the  arrest  was  authorized  to  be  made  without  warrant. 

"That  on  the  day  of  last,  A.  B.  was 

murdered  in  the  said  parish,  by  a  blow  with  an  axe  on  the  head  of 
the  said  A.  B.,  of  which  he  instantly  died,  given  by  C.  D.  of  the  said 
parish  ;  that  the  said  C.  D.  immediately  fled,  and  that  the  deponent 
having  good  reason  to  believe  that  he  would  effect  his  escape  before 
a  warrant  could  be  obtained,  and  there  being  no  magistrate  present, 
the  deponent  pursued  the  said  C.  D.  with  the  intent  to  arrest  and 
bring  him  before  a  magistrate  for  examination  and  commitment,  but 
that  I.  K.  and  L.  M.  well  knowing  all  that  is  above  stated,  forcibly 
opposed  the  deponent  in  the  lawful  execution  of  the  said  duty." 

Art.  689.  Warrant  for  arrest  and  commitment. 

"  Charged  on  oath  with  having  forcibly  opposed  E.  F.  legally 

acting  as  an  officer  of  justice,  in  the  lawful  execution  of  the  official  act 
of  arresting  C.  D.  who  fled  after  having  committed  murder,  the  cir- 
cumstances under  which  the  said  E.  F.  acted  being  then  known  to 
the  said  I.  K.  and  L.  M." 

Art.  690.  Indictment. 

"  That  on  the  day  of  in  the  year  , 

in  the  parish  of  L.  the  crime  of  murder  was  committed  on  one  A.  B. 
by  a  certain  C.  D.  who  instantly  endeavoured  to  make  his  escape, 
and  there  being  good  reason  to  believe  that  he  would  effect  it  before 
a  warrant  could  be  obtained,  and  there  being  no  magistrate  present, 
E.  F.  pursued  the  said  C.  D.  with  the  intent  to  arrest  him  ;  but  that 
I.  K.  and  L.  M.  well  knowing  the  premises,  on  the  day  and  year  and 
at  the  place  aforesaid,  forcibly  opposed  the  said  E.  F.  in  making  the 
said  arrest,"  &c. 

Art.  691.  Complaint  of  rescue. 

"  [That  the  deponent  being  sheriff  of  the  parish  of  L.  had  on 

the  day  of  last  a  warrant  in  due  form  of  law, 

issued  by  U.  P.  one  of  the  justices,  commanding  the  deponent  to 
arrest  A.  B.  charged  on  oath  with  the  crime  of  forgery  ;  on  which 
warrant  the  said  A.  B.  was  lawfully  arrested  and  in  the  custody  of 


CODE  OF  PROCEDURE.  589 

the  deponent,  who  was  proceeding  with  him  to  the  said  justice  as  by 
the  said  warrant  he  was  commanded,  and  that]  I.  K.  and  L.  M.  did 
on  the  day  and  year  and  the  place  last  aforesaid,  by  force  of  arms, 
rescue  the  said  C.  D.  from  the  deponent's  custody  and  set  him  at 
liberty." 

Art.  692.  Warrant  and  commitment. 

"  Charged  with  having  rescued  from  the  custody  of  the  sheriff 

of  the  parish  of  L.  one  C.  D.  lawfully  arrested  by  the  said  sheriff  on  a 
[warrant  for  forgery,"  &c.] 
Art.  693.  Indictment. 

The  same  as  the  complaint,  substituting  the  name  of  the  sheriff  for 
the  words  "  the  deponent,"  whenever  they  occur. 
Art.  694.  Complaint  of  escape. 

"That  A.  B.  being  lawfully  arrested  and  in  the  custody  of  the 

deponent,  [by  virtue  of  a  warrant  to  him  directed  and  delivered, 
issued  in  due  form  of  law  by  G.  P.  one  of  the  justices,  &c.  command- 
ing the  deponent  to  arrest  the  said  A.  B.  charged  on  oath  with  the 
assault  and  battery  upon  G.  H.]  and  being  so  in  custody  the  said  A.  B. 
privately  escaped  therefrom  without  being  legally  discharged,"  &c. 
Art.  695.  Warrant  and  commitment. 

— — "  Charged  on  oath  with  having  escaped  from  a  lawful  arrest,"  &c. 
Art.  696.  Indictment. 

"  Did,  after  being  lawfully  arrested,  on  a  charge  of  [assault  and 

battery  committed  upon  one  G.  H.]  escape  from  the  custody  of  the 
sheriff  of  the  parish  of  L.  without  being  legally  discharged." 
Art.  697.  Complaint  for  breach  of  prison. 

«'  That  he  is  the  keeper  of  the  public  prison  of  the  parish  of  L., 

and  that  A.  B.  was  legally  committed  to  his  custody  in  the  said  prison 
on  the  day  of  last,  by  a  commitment  in  due 

form  of  law,  issued  by  G.  P.  one  of  the  justices,  &c.  charging  the  said 
A.  B.  [with  the  crime  of  house-breaking ;  and  that  in  the  night  of  the 
day  of  last,  broke  the  said  prison  by  taking 

out  two  of  the  iron  bars  which  formed  the  window-grates  of  the  said 
prison],  and  escaped  [or  attempted  to  escape]  out  of  the  said  prison 
by  the  breach  he  had  so  made." 

Art.  698.  Warrant  and  commitment. 

a  Charged  with  breach  of  prison  and  attempt  to  escape  [or  with 

having  escaped."] 

Art.  699.  Indictment. 

«  That  on  the  day  of  in  the  year  , 

being  [legally]  confined  in  the  public  prison  of  the  parish  of  L.  in  the 
said  parish,  and  in  the  custody  of  the  keeper  thereof,  on  a  charge  of 
[house-breaking],  he  did  then  and  there  forcibly  break  [the  bars 
which  formed  the  window  grates  thereof],  and  escape  through  the 
breach  he  had  thus  made." 

Art.  700.  Indictment  for  aiding  the  prisoner  to  attempt  an  escape. 

"That  one  A.  B.  was  on  the  day  of  in  the 

year  ,  lawfully  confined  in  the  public  prison  of  the  parish  of 

L.  by  virtue  of  a  commitment  made  by  a  magistrate,  for  the  [crime  of 
theft],  and  that  I.  K.  and  L.  M.  did,  on  the  day  and  year  and  in  the 
parish  aforesaid,  furnish  the  said  A.  B.  with  [a  hammer  and  saw]  for 
the  purpose  of  attempting  his  escape,  by  breaking  the  said  prison  with 
the  instruments  aforesaid." 


590  CODE  OF  PROCEDURE. 

\ 
Art.  701.  Warrant  and  commitment  for  the  above  offence. 

"  Charged  with  having  furnished  to  A.  B.  a  prisoner  legally 

confined  in  the  public  prison  of  the  parish  of  L.  instruments  for  at- 
tempting his  escape  by  breaking  the  prison." 

Art.  702.  In  all  the  proceedings  under  this  chapter,  if  the  defendant 
be  an  attorney  at  law  or  a  counsellor  at  law,  these  words  must  be  in- 
serted after  his  name  in  the  charge  of  the  offence,  "  he  being  at  that 
time  an  attorney  at  law,"  or  "counsellor  at  law,"  or  both,  as  the  case 
may  be. 

Art.  703.   Complaint  against  an  attorney,  for  malpractice. 

''That  A.  B.   being  on  the  day  of  last,  an  attorney 

and  counsellor  at  law,  duly  admitted  to  practise  in  the  parish  court  of 
the  parish  of  L.,  and  having  been  charged  with  the  prosecution  of  a 
suit  brought  by  the  deponent  in  that  court  against  one  C.  D.  for  the 
recovery  of  a  tract  of  land  ;  on  the  day  and  year  and  in  the  parish 
aforesaid,  during  the  pendency  of  the  said  suit,  did  designedly  divulge 
to  the  said  C.  D.,  to  the  injury  of  the  deponent,  a  circumstance  that 
came  to  his  knowledge  by  virtue  of  this  trust,  to  wit,  [that  I.  K.  under 
whom  the  defendant  claimed  the  land  in  question,  had  resided  for  two 
years  in  this  state,  the  knowledge  of  which  fact  enabled  the  said  C.  D. 
to  avail  himself  of  a  plea  of  prescription  against  the  deponent's]  title  ; 
or,  [did  give  counsel  to  the  said  C.  D.  to  plead  prescription  against  the 
deponent's  title]  ;  or,  [did,  after  having  been  consulted  on  the  merits  of 
the  case  for  the  deponent,  under  pretext  that  the  deponent  had  not 
paid  his  fees,  (or  under  some  other  pretext,  stating  it,)  appear  for  the 
said  C.  D.  as  his  counsellor  in  court  in  the  said  cause] — [or  secretly  as 
his  adviser,  as  the  case  may  be]  ;  or,  [did  in  the  prosecution  of  the 
said  cause,  with  intent  to  injure  the  deponent,  (agree  to  put  off  the  trial 
of  the  said  cause)  when  he  was  not  obliged  by  law  so  to  do,  by  which 
the  deponent  suffered  great  injury]  ;  or,  [did  with  intent  to  injure  the 
deponent,  omit  to  bring  on  the  trial  of  the  said  cause,  which  he  lawful- 
ly might  have  done,  by  which  the  deponent  suffered  great  injury]  ;  or, 
[did  receive  from  the  said  C.  D.  the  sum  of  one  thousand  dollars,  under 
colour  of  a  fee  for  advice  to  be  given  for  services  to  be  rendered  by 
the  said  A.  B.,  but  in  reality  as  a  bribe  for  betraying  the  trust  reposed 
in  him  as  attorney  and  counsellor  to  the  deponent."] 

Art.  704.  In  the  warrant  .and  commitment,  it  will  be'&ufficient  to  say, 
in  either  of  these  complaints — 

li  Charged  with  malpractice  as  an  attorney  at  law,  or  a  counsel- 
lor at  law,  or  both,  [or  charged  with  receiving  a  bribe],  as  the  case  may 
be. 

Art.  705.  Indictment. 

The  same  charge  as  in  the  complaint,  substituting  the  name  of  the 
complainant  for  the  words  "the  deponent,"  whenever  they  occur. 

Art.  706.  The  above  forms  will  serve  for  all  prosecutions  against 
attornies  or  counsellors,  changing  only  the  charge  according  to  circum- 
stances, retaining  in  all  cases  the  words  of  the  article,  under  which  the 
prosecution  is  made,  where  the  sense  will  admit. 

Art.  707.  Complaint  for  personating  an  officer  of  justice. 
"  That  one  A.  B.  not  being  an  officer  of  justice,  but  fraudulent- 
ly pretending  to  be  [one  of  the  deputies  of  the  sheriff  of  the  parish  of 
L.,  in  such  assumed  character  on  the  day  of  in 
the  year                    ,  in  the  parish  of  L.,  made  an  assault  on  the  depo- 


CODE  OF  PROCEDURE.  591 

nent,  and  kept  him  in  custody  and  imprisonment  tor  the  space  of  two 
hours]  ;  or,  in  such  assumed  character,  exacted   and  received,  [or  at- 
tempted to  receive,  as  the  case  may  be],  the  sum  of  five  dollars  from 
the  deponent,  for  fees  due  to  the  said  sheriff." 
Art.  708.   Warrant  and  commitment. 

"  Charged  on  oath  with  falsely  and  fraudulently  personating  an 

officer  of  justice." 

Art.   709.   Indictment. 

The  same  charge  as  in  the  complaint,  substituting  the  name  of  the 
complainant  for  the  words  "the  deponent,"  whenever  they  occur. 

Art.  710.   Complaint  for  falsely  personating  another  in  a  judicial  pro- 
ceeding. 

"  That  A.  B.  without  having  received  any  authority  from  the 

deponent,  falsely  personated  him,  and  in  such  assumed  character,  [on 
the  day  of  in  the  year  ,  in  the  parish 

of  L.,  put  in  a  plea  of  confession  of  judgment  in  a  suit  brought  by  one 
J.  S.  against  the  deponent,  in  the  parish  court  of  the  parish  of  L.;]  or 
[put  in  bail  for  one  C.  D.  in  a  suit  brought  against  him  by  one  J.  S.  in 
the  parish  court  of  the  parish  of  L."] 

Art.  711.  Complaint  for  perjury  in  a  court  of  justice. 
"Be  it  remembered,  that  on  this  day  of 

in  the  year  of  our  Lord  ,* before  me,  G.  P.  judge  of  the  city 

court  of  the  city  of  New  Orleans,  came  I.  K.  and  L.  L.  who  being 
sworn,  do  say,  that  [on  the  day  of  last,  they  were 

present  in  the  district  coprt  of  the  first  district  of  this  state  then  sitting 
in  this  city,  and  that  they  saw  and  heard  J.  S.  sworn  as  a  witness  in  the 
said  court  in  a  cause  then  there  pending,  between  A.  B.  plaintiff,  and  C. 
D.  defendant,  and  that  the  said  J.  S.  did  then  and  there,  under 
the  sanction  of  the  oath  so  administered,  falsely,  deliberately,  and  wil- 
fully assert  and  give  in  evidence  in  the  said  cause,  that  he  heard 
the  defendant  acknowledge  on  the  first  day  of  January  last,  in  the  city 
of  New  Orleans,  that  he  owed  the  sum  of  one  hundred  dollars  to  the 
plaintiff  in  the  said  suit,  which  assertion  the  deponents  declare  to  be  a 
falsehood,  because  they  say  that  on  the  said  first  day  of  January  the  said  J. 
S.  was  not  in  the  city  of  New  Orleans,  but  was  seen  by  both  the  depo- 
nents on  that  day  in  the  city  of  New  York."] 
Art.  712.  Warrant  and  commitment. 

"  Charged  on  oath  with  the  crime  of  perjury." 

Art.  713.   Indictment. 

"  That  J.  S.  being,  on  the  day  of  in  the 

year  ,  at  the  parish  ofkNew  Orleans,  sworn  as  a  witness,  on 

oath  legally  administered  to  him  [in  the  district  court  of  the  state  of 
Louisiana  for  the  first  district],  in  a  suit  pending  in  the  said  court  be- 
tween A.  B.  plaintiff  and  C.  D.  defendant,  did  under  sanction  of  the 
said  oath  declare  and  assert  as  evidence  in  the  said  cause,  that  [here  in- 
sert the  particular  part  of  the  evidence  which  is  found  to  be  false]  ; 
which  evidence  and  assertion  so  given  and  made  the  jurors  present, 
was  a  deliberate  and  wilful  falsehood,  inasmuch  as  [the  said  J.  S.  was 
not  at  New  Orleans  at  the  time  asserted  in  his  said  evidence,  but  at  the 
city  of  New  York,  and  did  hear  the  defendant  acknowledge  that  he 
owed  the  said  sum  to  the  plaintiff."] 

Art.  714.   In  proceedings  for  perjury  on  a  written  instrument,  such 
as  an  accusation   before  a  magistrate,   an  examination  before  commia- 


592  CODE  OF  PROCEDURE. 

sioners,  or  answers  to  interrogatories,  the  whole  instrument  need  not 
be  copied  in  the  complaint  or  the  indictment,  but  only  that  assertion 
which  is  alleged  to  be  false  ;  the  whole  instrument  must,  however,  be 
produced  and  shown  to  the  defendant  previous  to  the  arraignment  in 
the  manner  herein  before  directed  with  respect  to  forged  instruments, 
with  the  modifications  contained  in  a  subsequent  chapter  prescribing 
the  forms  of  proceeding  on  prosecutions  for  forgery. 

Art.  715.  Complaint  for  perjury,  in  answer  to  interrogatories  put  by 
a  plaintiff. 

"That  the  deponent  on  the  day  of  in  the 

year  ,  presented  a  petition  to  the  parish  court  of  the  parish 

of  L.  against  J.  S,  for  the  recovery  of  a  sum  of  money  due  to  him,  by 
promise,  for  goods  sold  ;  that,  according  to  the  forms  prescribed  by 
law,  he  annexed  to  his  said  petition  certain  interrogations  to  be  answer- 
ed by  the  said  J.  S.  on  oath  ;  among  which  interrogations  was  the  fol- 
lowing :  *  First  interrogatory— -did  you  not  on  the  day  of 
,  or  at  any  other  time,  acknowledge  that  you  had  purchased 
the  goods  mentioned  in  the  petition  and  promise  to  pay  the  amount  to 
the  plaintiff?7 — which  interrogatories  were  allowed,  and  ordered  by 
the  judge  of  the  said  court  to  be  answered,  and  that  the  said  J.  S. 
made  answers  thereto  in  writing  ;  and  in  answer  to  the  interrogatory 
herein  before  set  forth,  on'the  day  of  last,  in  the 
parish  of  New  Orleans,  under  the  sanction  of  an  oath  legally  adminis- 
tered, that  is  to  say,  by  G.  P.  one  of  the  judges  of  the  city  court  of 
the  city  of  New  Orleans,  did  deliberately,  and  wilfully,  and  falsely 
allege  and  declare,  in  writing,  as  follows  :  '  In  answer  to  the  first  in- 
terrogatory the  respondent  [meaning  the  said  J.  S.]  answers — that  he 
never  made  such  acknowledgement  as  set  forth  in  the  said  first  inter- 
rogatory'— which  allegation  the  deponent  declares  is  a  falsehood,  in- 
asmuch as  the  said  J.  S.  did  make  such  acknowledgement  as  is  stated 
or  inquired  of  by  the  interrogatory  above  recited. " 

Art.  716.  The  charge  in  the  indictment  is  the  same  as  the  complaint, 
inserting  the  name  of  the  complainant  instead  of  the  words  "  the  depo- 
nent," and  the  words  "the  grand  jury  present,"  instead  of  the  words 
"the  deponent  declares,"  in  the  conclusion  of  the  statement. 

Art.  717.  Complaint  for  false-swearing. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  in  the 

parish  of  New-Orleans,  made  a  voluntary  affidavit  under  the  sanction  of 
an  oath,  administered  by  H.  P.  one  of  the  justices,  to  the  following 
effect,  [recite  the  part  of  the  affidavit  alleged  to  be  false]  ;  and  the  depo- 
nent declares,  that  the  allegation  aforesaid,  contained  in  the  said  affi- 
davit, is  a  falsehood,  deliberately  and  wilfully  made,  inasmuch  as  in  truth 
[insert  the  true  statement  as  above."] 

Art.  718.  The  indictment  pursues  the  complaint,  changing  as  is  above 
directed  in  the  last  precedent. 

Art.  719.  Complaint  for  subornation  or  perjury. 

"  That  [as  in  the  case  of  perjury  by  a  witness  in  court]  ;  and  that 

W.  S.  of  the  said  parish,  did,  by  means  unknown  to  the  deponent,  pro- 
cure the  said  J.  S.  to  make  the  false  declaration  and  commit  the  perjury 
aforesaid." 

Art.  720.  Indictment. 

"That  [the  same  as  the  indictment  for  perjury  by  a  witness  in 

court ;  and  add,]  and  the  jurors  aforesaid  do  further  present,  that  W.  S. 


CODE  OF  PROCEDURE.  593 

of  the  said  city,  did,  on  the  said  day  of  in  the  year  , 

at  the  parish  of  New-Orleans,  by  means  to  the  said  jurors  unknown,  in- 
duce the  said  J.  S.  to  make  the  false  declaration  and  commit  the  perjury 
aforesaid." 

Art.  721.  Complaint  for  endeavouring  to  suborn. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  in  the 

parish  of  L.,  by  offering  a  reward  of  one  hundred  dollars  to  him,  endea- 
voured to  persuade  one  W.  S.  to  commit  perjury  by  declaring,  under 
the  sanction  of  an  oath  as  a  witness  in  a  certain  cause  then  pending  and 
to  be  tried  before  the  parish  court  of  the  parish  of  L.,  brought  by  this  de- 
ponent against  A.  B.,  that  he  the  said  W.  S.  had  [insert  the  fact  endea- 
voured to  be  proved,]  he  the  said  J.  S.  well  knowing  that  [if  the  said 
W.  S.  had  wilfully  and  deliberately  made  the  said  declaration,  under 
the  sanction  of  an  oath  lawfully  administered  in  the  said  court,]  he 
would  have  been  guilty  of  perjury." 

Art.  722.  Indictment. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  at  the 

parish  of  L.,  by  offering  a  reward  of  one  hundred  dollars  to  one  W.  S., 
did  endeavour  to  persuade  him  the  said  W.  S.  to  commit  perjury  by  de- 
claring, under  the  sanction  of  an  oath  to  be  legally  administered  to  him 
the  said  W.  S.  as  a  witness  in  a  certain  cause  then  pending  and  to  be 
tried  in  the  parish  court  of  the  parish  of  L.  between  one  I.  K.  plaintiff' 
and  A.  B.  defendant,"  &c.  as  in  the  complaint. 

Art.  723.  Complaint  and  indictment  for  obstructing  the  proceedings 
of  a  court  of  justice. 

"That  J.  S.  during  the  session  of  the  parish  court  of  the  parish 

of  L.  on  the  day  of  in  the  year  ,in  the  parish  of  L. 

did  [by  loud  speaking  or  making  a  clamour  and  noise]  wilfully  obstruct 
the  proceedings  of  the  said  court ;  or  [that  the  parish  court  of  the  par- 
ish of  L.  on  the  day  of  in  the  year  ,made  a  legal 
order  for  the  maintenance  of  order  (or  to  preserve  regularity  of  proceed- 
ings therein),  which  order  directed  [insert  the  purport  of  the  order]  ; 
and  that  the  said  order  was  signified  to  one  J.  S.  for  his  government,  but 
that  he  the  said  J.  S.  did  refuse  to  obey  the  same,  and  did,"  [insert  the 
act  of  disobedience.] 

Art.  724.  Indictment  for  using  indecorous  expressions,  &c. 

"That  J.  S.  on  the  day  of  in  the  year          ,  in  the 

parish  of  in  the  [parish  court  of  the  said  parish]  then  open  and  in 

session,  did  verbally  use  the  following  [indecorous,]  [contemptuous,]  or 
[insulting]  expressions,  addressed  to  the  judge  of  the  said  court,  [of,] 
or  [to,]  the  [judge  of  the  said  court,]  or  said  [court,]  that  is  to  say,  [re- 
cite the  expressions  complained  of."] 

Art.  725.   Indictment  for  indecorous  expressions  in  writing. 

"  That  J.  S.  on  the  day  of  in  the  year          ,  in  the 

parish  of  New-Orleans,  in  a  written  argument  or  pleading,  addressed  to 
the  [judges  of  the  supreme  court  of  the  state  of  Louisiana,]  in  a  suit  then 
pending  in  the  said  court  between  A.  B.  plaintiff  and  C.  D.  defendant, 
did  use  the  following  [indecorous,]  [contemptuous,]  or  [insulting]  ex- 
pressions of  or  [to]  the  said  court,  or  [the  judges  thereof,]  that  is  to 
say,"  [insert  the  language  complained  of.] 

Art.  726.  If  the  party  complained  of  be  an  attorney  or  counsellor, 
and  the  indictment  be  on  a  third  offence,  the  circumstances  of  his  being 
an  attorney  or  counsellor  must  be  set  forth  in  the  indictment. 
3  Z 


594  CODE  OF  PROCEDURE. 

Art.  727.  Indictment  for  obstructing  the  proceedings  of  courts. 

"  That  on  the  day  of  in  the  year  ,  at  the  par- 
ish of  L.  the  parish  court  of  the  said  parish  being  then  open,  J.  S.  [by 
threats  of  violence]  or  [by  violence]  offered  to  A.  B.  the  [judge  of  the 
said  court,]  or  [summoned  to  attend  the  said  court  as  a  juror,]  or  [as  a 
witness,]  or  attending  the  said  court  to  [prosecute]  or  defend  a  suit  as  a 
party  or  [as  an  attorney  or  counsellor,]  obstructed  the  proceedings  of  the 
said  court." 

Art.  728.  If  the  person  accused  in  the  above  indictment  be  an  attor- 
ney or  counsellor,  that  fact  must  be  stated. 


CHAPTER  VI. 


Forms  of  proceeding  on  prosecutions  for  offences  against  public 

tranquillity. 

Art.  729.  Indictment  for  an  unlawful  assembly. 

"  That  A.  B.,  [together  with  C.  D.,  E.  F.,  &c.]  or  together  with 

three  or  more  persons,  to  the  jurors  unknown,  did,  on  the  day  of 

in  the  year  ,  in  the  parish  of  L.  assemble  with  intent  to  aid 

each  other  by  violence  illegally  to  [pull  down  a  house  erected  by  A. 
B.  in  the  said  parish,]  or  [to  do  any  other  illegal  act,  reciting  it."] 

Art.  730.  For  a  riot. 

"That  A.  B.  [as  in  the  preceding  form  to  the  end];  and  that 

being  so  assembled,  the  said  A.  B.  and  the  others  of  the  said  assembly, 
did  actually,  by  violence  and  illegally,  [pull  down  the  said  house,  or  do 
any  other  illegal  act,  reciting  it."] 

Art.  731.  When  the  original  assembly  was  not  unlawful. 

"That  A.  B.  together  with  three  or  more  persons,  to  the  jur- 
ors unknown,  having  assembled  on  the  day  of  in  the  year 
,  in  the  parish  of  L.  for  a  lawful  purpose,  did,  afterwards  and  be- 
fore the  said  assembly  was  dispersed,  on  the  same  day  and  year  and  at 
the  place  aforesaid,  proceed  to  aid  each  other  in  committing,  and  did 
commit  the  unlawful  and  violent  act  of  [recite  the  unlawful  act."] 

Art.  732.  An  unlawful  assembly  for  the  purpose  of  witnessing  a  box- 
ing match. 

•'  That  A.  B.  with  three  or  more  others,  to  the  jurors  unknown, 

on  the  day  of  in  the  year  ,  at  the  parish  of  L.,  assem- 

bled together  for  the  purpose  of  being  present  at  and  witnessing  a  box- 
ing match,  made  up  and  agreed  to  be  fought  between  [C.  and  D.],  or 
[between  two  persons  to  the  jurors  unknown."] 

[If  the  fight  actually  takes  place,  add,]  "  and  the  jurors  further  present, 
that  a  single  combat  with  fists,  or  a  boxing  match,  was  then  and  there 
fought  in  the  presence  of  the  said  assembly,  whereof  the  said  A.  B.  was 
one,  and  that  he  and  the  other  persons  composing  the  said  assembly  wit- 
nessed the  boxing  match  ;  and  [if  wagers  were  laid,  add,]  that  the  said 
A.  B.  then  and  there  laid  a  wager  on  the  event  of  such  combat  or  box- 
ing match." 

Art.  733.  Indictment  for  public  disturbance. 

"That  A.  B.  and  C.  D.  on  the  day  of  in  the  year 


CODE  OF  PROCEDURE.  595 

,  in  the  parish  of  L.,  did  meet  in  the  public  highway,  near  to  the 
houses  of  I.  K.,  and  J.  S.,  and  G.  H ,  and  other  inhabitants  of  the  said 
parish,  and  being  so  met  [by  vociferation,  quarrelling,]  or  fighting  with 
each  other,  greatly  disturbed  the  said  inhabitants  of  the  said  place  in 
the  prosecution  of  their  business  ;  [or  if  at  night,  say,]  in  their  neces- 
sary repose." 

Art.  734.  The  enumeration  of  the  names  of  the  inhabitants  in  the 
above,  is  made  only  to  designate  the  place,  but  is  not  necessary  if  the 
neighbourhood  be  otherwise  designated,  as  a  square  or  street  in  a  city. 


CHAPTER  VII. 


Forms  used  in  prosecutions  for  offences  against  the  right  of  suffrage. 

Art.  735.  Indictment  for  bribing  at  an  election. 

"That  A.  B.  on  the  day  of  in  the  year  ,  at 

the  parish  of  L.,  was  an  inhabitant  of  the  said  parish  entitled  by  law  to 
vote  at  public  elections  for  members  of  the  and  for  governor  of 

this  state,  and  that  J.  S.  on  the  day  and  year  and  at  the  place  aforesaid, 
for  the  purpose  of  influencing  the  vote  of  the  said  A.  B.  at  the  public 
election  then  about  to  be  held  on  the  day  of  then  next 

thereafter  for  the  election  of  [a  governor  of  the  state  of  Louisiana],  did 
offer  to  the  said  A.  B.  [the  sum  of  ten  dollars,  or  any  other  advantage 
or  emolument  which  would  constitute  bribery,  according  to  the  defini- 
tion of  that  term  in  the  book  of  Definitions,  describing  what  such 
advantage  or  emolument  is],  as  a  BRIBE,  if  he  would  consent  to  vote  at 
such  election  for  C.  D.  as  governor." 

If  the  charge  be  given  fora  BRIBE,  insert  "did  give"  instead  of  "did 
offer;"  and  instead  of  the  words,  "  if  he  would  consent  to  vote,"  insert 
"for  consenting  to  vote." 

If  the  charge  be  for  receiving  a  BRIBE,  add  at  the  end  of  the  last 
form,  "which  the  said  A.  B.  received,  and  promised,  in  consideration 
of  such  bribe,  to  vote  for  the  said  C.  D." 

Art.  736.  Indictment  for  offering  or  giving  a  bribe  to  a  judge  or  clerk 
of  the  election,  or  the  officers  attending  it. 

"  That  A.  B.  being  [parish  judge  of  the  parish  of  L.,  is  by 

virtue  of  his  office  constituted  by  law  one  of  the  judges  of  the  public 
elections  for  members  of  the  general  assembly  and  governor  of  the 
state,  in  the  said  parish  of  L.];  and  that  J.  S.  desiring  to  influence  the 
said  A.  B.  to  betray  the  said  trust  reposed  in  him  by  law,  on  the 
day  of  in  the  year  ,  at  the  parish  aforesaid,  proposed  and 

offered  to  the  said  A.  B.  [to  procure  for  him  by  the  influence  of  him 
the  said  J.  S.  the  place  as  cashier  of  the  bank  of  in  the  city  of 

New  Orleans,  as  a  bribe,  if  he  the  said  A.  B.  would,  at  a  public  elec- 
tion for  governor  of  the  state  then  about  to  be  held  in  the  said  parish, 
on  the  day  of  then  next,  put  into  the  ballot-box  one  hun- 

dred ballots  with  the  name  of  X.  Y.  written  thereon,  and  take  out  an 
equal  number  that  had  been  legally  deposited  therein,  containing  the 
name  of  some  other  person." 

If  the  charge  be  bribery  against  the  judge,  clerk,  or  other  officer, 


596  CODE  OF  PROCEDURE. 

add,  "  which  proposal  the  said  A.  B.  did  then  and  there  accept,  and 
promised  to  perform  the  illegal  act  so  requested  to  be  done  as  a  con- 
sideration for  the  said  bribe." 

Art.  737.  The  above  form  will  serve  for  indictments  against  clerks 
and  other  officers  of  elections,  changing  only  the  allegation  of  the  office. 

Art.  738.   Indictment  for  hiring  persons  to  procure  votes. 

"That  J.  S.  on  the  day  of  in  the  year  ,  in  the 

parish  of  did  offer  or  [give,  as  the  case  is],  to  one  A.  B.  [the  sum 

of  fifty  dollars]  as  a  reward  for  his  services  in  persuading  or  procuring 
persons  qualified  to  vote  as  electors  for  [governor]  to  vote  at  an  elec- 
tion then  about  to  take  place  for  X.  Y.  as  [governor],  or,  as  the  case 
may  be,  [to  vote  against  A.  Z."] 

Art.  739.  Indictment  for  endeavouring  to  procure  votes  by  threats. 

"That  A.  B.  of  the  parish  of  L.  on  the  day  of 

followed  the  business  of  a  grocer,  and  in  the  way  of  his  business,  then 
and  for  a  long  time  before,  had  the  custom  of  one  J.  S.  and  made  law- 
ful gains  by  supplying  him  with  groceries  for  his  family,  and  that  the 
said  A.  B.  on  the  day  of  last  aforesaid,  was  entitled  to  vote 

at  a  public  election  for  members  of  the  general^  assembly  of  this  state 
then  about  to  be  held  on  the  day  of  then  next  in  the  said 

parish;  and  the  jurors  further  present,  that  J.  S.  of  the  said  parish,  be- 
ing desirous  of  procuring  the  vote  and  influence  of  the  said  A.  B.  at 
the  said  election  in  favour  of  C.  I).,  E.  F.,  &c.  as  members  of  the 
house  of  representatives,  on  the  day  and  year  and  at  the  parish  first 
aforesaid,  threatened  the  said  A.  B.  to  withdraw  his  custom  or  dealing 
from  him  in  his  said  trade  of  grocer,  if  he  the  said  A.  B.  did  not,  at 
the  said  election,  vote  for  the  said  C.  D.  and  E.  F.  as  members  of  the 
house  of  representatives." 

Art.  740.  Indictment  against  a  clerk  of  election  for  making  a  false 
'entry. 

"  That  J.  S.  being  appointed  clerk  of  the  public  election  began 

to  be  held  on  the  day  of  in  the  year  ,  at  the  parish 

of  L.  for  members  of  the  house  of  representatives  of  the  state  of  Loui- 
siana, and  being  in  the  exercise  of  the  duties  of  the  said  office  on  the 
day  of  in  the  year  aforesaid,  did  knowingly  make  a  false 

entry  on  the  list  of  voters  at  the  said  election,  by  inserting  thereon 
[insert  the  false  entry."] 

Art.  741.   If  against  a  judge. 

"That  J.  S.  being  a  judge  of  the  public  election,  began  to  be 

held,  &c.  [as  in  the  above  form]  did  knowingly  put  into  the  ballot-box 
a  ballot  not  given  by  an  elector,  or  [did  permit  a  ballot,  not  given  by 
an  elector,  to  be  put  into  the  ballot-box;]  or  [did  take,  or  permit  to  be 
taken,  out  of  the  ballot-box,  in  a  manner  not  prescribed  by  law,  a  ballot 
deposited  therein];  or  [did  designedly  change  the  ballots  given  by  the 
electors];  or  [did  designedly  destroy  the  ballots  given  by  the  electors 
at  such  election  by  burning  the  same];  or  [did  designedly,  by  omitting 
to  seal  the  box,  or  any  other  omission  or  act,  describing  it],  destroy  or 
change  the  ballots  given  at  the  said  election."] 

Art.  742.  The  other  offences  under  the  second  chapter  of  the  seventh 
title  of  the  Penal  Code,  may  be  indicted  according  to  the  above  form, 
stating  in  the  same  manner  the  office  of  the  defendant,  and  the  act  or 
omission  as  nearly  as  possible  in  the  words  of  the  article  creating  the 
offence. 


CODE  OF  PROCEDURE.  597 

Art.  743.  Indictment  for  bringing  armed  men  within  a  mile  of  the 
place  of  election. 

"That  A.  B.  having  under  his  orders  [as  colonel  of  the  militia 

of  the  state,  or  other  military  office,  if  he  hold  one,  stating  it],  a  body 
of  troops  or  armed  men,  did  on  the  day  of  in  the  year 

,  at  the  parish  of  L.  order  and  bring,  [or  did  keep,  according  to 
the  fact],  the  said  troops  within  one  mile  of  the  [courthouse]  of  the  said 
parish,  where  a  public  election  for  [members  of  the  general  assembly] 
of  the  state  of  Louisiana  was  on  that  day  held,  and  [if  such  be  the 
charge,  add]  with  intent  to  influence  the  said  election." 

Art.  744.  Indictments  for  riots  at  elections,  must  be  in  the  form  of 
indictments  for  riots  on  other  occasions,  only  adding  to  the  charge  that 
such  riot  was  within  half  a  mile  of  the  place  at  which  a  public  election 
was  then  held. 

Art.  745.  Indictments  for  other  offences  committed  at  elections, 
must  state  the  holding  of  the  election  in  the  form  above  given,  and  the 
offence  as  nearly  as  possible  in  the  words  of  the  article  which  forbids 
the  offence. 


CHAPTER  VIII. 

Of  forms  used  in  prosecutions  for  offences  against  the  liberty  of 

the  press. 

Art.  746.  Indictment  for  preventing  any  one  from  publishing  by 
threats,  &c. 

"  That  A.  B.  having  the  intention,  according  to  the  right  secured 

to  him  by  the  constitution,  of  freely  speaking,  writing,  and  printing 
on  any  subject,  to  write,  or  to  publish,  or  verbally  to  make  [an  inves- 
tigation into  the  public  character  and  conduct  of  J.  S.  as  governor  of 
the  state  of  Louisiana,  (or  as  judge  or  member  of  the  general  assem- 
bly, or  as  any  other  officer,  stating  the  office),  or  any  other  speech, 
or  publication,  or  writing,  describing  its  nature],  J.  S.  of  the  parish 
of  L.  on  the  day  of  in  the  year  , 

in  the  parish  aforesaid,  in  order  to  prevent,  or  endeavour  to  prevent 
the  said  A.  B.  from  exercising  the  right  secured  to  him  as  aforesaid, 
did  threaten  him,  that  if  he  printed,  [wrote,  or  spoke,  as  the  case  may 
be],  the  said  investigation,  [or  other  matter,  according  to  the  fact],  he 
the  said  J.  S.  would  beat  him  the  said  A.  B.  [or  do  some  other  injury 
to  his  person,  property,  or  credit,  describing  the  nature  of  the  in- 
jury,"] &c. 

If  the  offender  be  a  member  of  the  general  assembly,  or  a  judge,  or 
judicial  or  executive  officer,  then  add,  if  his  intent  will  warrant  the 
charge,  "he  the  said  J.  S.  being  [state  the  place  or  office],  and  hav- 
ing made  the  said  threats,  in  order  to  prevent  an  investigation  of  his 
official  conduct,  [or  if  he  be  a  member  of  the  general  assembly,  the 
investigation  of  the  branch  to  which  he  belongs,  stating  it,"]  &c. 

If  the  offence  be  committed  by  a  judge,  and  the  publication  be  pre- 
vented by  an  official  act  or  the  threat  of  one,  follow  the  above  form 
down  to  and  including  the  words,  "that  he  the  said  J.  S.  would," 


598  CODE  OF  PROCEDURE. 

after  which  insert  "  he  being  then  [state  his  office]  by  virtue  of  his 
office,  arrest,  [or  state  any  other  official  act  that  was  threatened."] 

If  the  publication  was  prevented,  or  attempted  to  be  prevented,  by 

the  actual  exercise  of  the  official  act,  state, "  did  by  virtue  of  his 

office,  he  being  then  [state  the  office],  arrest  or  [state  the  official  act] 
the  said  A.  B.,  and  did  thereby  prevent,  or  attempt  to  prevent,  the 
said  A.  B.  from  speaking,  [printing,  or  writing,  as  the  case  may  be], 
what  he  so  intended." 

Art.  747.  Indictment  against  a  judge  for  granting  an  injunction 
against  a  publication,  under  an  allegation  that  it  was  a  libel. 

"  That  J.  S.  being  judge  and  [state  the  office]  did  [insert  the  date 

and  place]  issue  an  injunction  commanding  A.  B.  to  desist  from  pub- 
lishing a  writing  which  he  intended  to  publish,  entitled  or  purporting 
to  be  [describing  the  writing]  under  pretext  [that  the  same  was  a  libel 
or  a  seditious  writing  on/']  [stating  the  cause  for  granting  the  injunc- 
tion.] 

Art.  748.  Indictment  for  preventing  the  investigation  of  legislative, 
judicial,  or  executive  proceedings. 

"  That  J.  S.  [being  a  judge,  and  state  his  office  if  he  have  any], 

intending  to  restrain  the  right,  given  by  the  constitution,  to  examine 
the  proceedings  of  the  legislature,  or  of  any  branch  of  the  government, 
and  intending  also  to  give  effect  to  an  act  of  the  general  assembly, 
entitled  'an  act,'  [insert  the  title],  passed  in  contravention  of  that 
clause  in  the  constitution  which  declares,  that  no  law  shall  be  made  to 
restrain  the  right  aforesaid,  did/'  [here  insert  the  act  done  in  obe- 
dience to  the  unconstitutional  law.] 


CHAPTER  IX. 


Of  the  forms  to  be  used  in  prosecutions  for  offences  against  public 

records. 

Art.  749.  Indictment  for  forging  a  public  record. 

"  That  A.  B.  on  the  day  of  in  the  year 

,  at  the  parish  of  L.  forged  a  public  record,  purporting  to 
be  the  record  of  an  act  of  the  general  assembly  of  Louisiana,  of  which 
forgery  the  following  is  a  copy  [insert  an  exact  copy  of  the  forged 
record],  with  intent  to  injure  or  defraud,  and  so  the  said  jurors  say, 
that  the  said  A.  B.  hath  committed  the  crime  of  forgery,  contrary,"  &c. 

Art.  750.  When  the  forgery  consists  in  altering  a  record,  the  indict- 
ment shall  be  : 

"  That  among  the  records  of  conveyances  and  other  authentic 

acts,  kept  in  the  notary's  office  now  under  the  care  of  A.  B.  notary 
public,  in  [state  the  place]  there  was  prior  to  the  day  of 

in  the  year  ,  a  certain  [act  of  sales],  made  by  I. 

K.  to  L.  M.  of  which  the  following  is  a  copy  [insert  a  copy  of  the 
record  as  it  was  before  the  alteration],  and  that  J.  S.  on  the 
day  of  in  the  year  ,  at  the  parish  of  L.  made, 

without  any  legal  authority,  and  with  intent  to  injure  or  defraud, 
made  such  alterations  in  the  said  record  as  to  make  it  appear  to  be  of 


CODE  OF  PROCEDURE.  599 

the  following  tenor  [insert  a  copy  of  the  record  as  altered],  and  so  the 
said  jurors  say,  that  the  said  J.  S.  hath  committed  the  crime  of  for- 
gery." 

Art.  751.  When,  from  obliterations  made  in  the  original  record  it 
is  difficult  to  prove  what  its  exact  tenor  was  before  the  alterations,  the 
form  shall  be  : 


"  That  among  the  records  [designating  them  as  above]  there  was 

one  purporting  to  be  [describe  the  nature  of  the  altered  record  as  it 
was  before  the  alteration],  and  that  J.  S.  on  the  day  [state  the  date] 
at  the  parish  of  L.,  without  lawful  authority,  and  with  design  to  injure 
or  defraud,  made  such  alterations  in  the  said  record  as  to  make  it 
appear  to  be  of  the  following  tenor,"  [insert  a  copy  of  the  record  as 
altered.] 

Art.  752.  Indictment  for  forging  an  official  certificate  of  an  officer 
having  the  custody  of  public  records. 

"  Did  make  and  forge  a  false  certificate,  of  which  the  following  is 

a  copy,  [insert  an  exact  copy  of  the  forged  certificate],  with  the  design 
to  injure  or  defraud,  and  so  the  said  jurors  say,  that  the  said  J.  S.  hath 
committed  forgery,  contrary,"  &c. 

Art.  753.  Indictment  for  carrying  away,  defacing,  or  destroying  a 
public  record. 

"  That  A.  B.  on  the  day  of  in  the  year 

,  in  the  parish  of  did  fraudulently  [carry  away], 

[deface],  or  [as  the  case  may  be,  destroy],  a  public  record,  that  is  to 
say,  the  record  of  [the  death  of  A.  B.  kept  by  the  recorder  of  births 
and  deaths  in  the  city  of  New  Orleans],  [or  any  other  public  record," 
describing  it.] 

Art.  754.  If  either  of  the  above  offences  be  committed  by  the 
officer  having  the  custody  of  the  record,  in  relation  to  which  the 
crime  'was  committed,  it  must  be  thus  stated,  after  describing  the 
offence:  "with  design  to  injure  or  defraud  :  he  the  said  J.  S.  being  at 
that  time  the  officer  entrusted  with  the  custody  of  the  said  public 
record." 

Art.  755.  If  the  offence  be  concealing  or  carrying  away  the  record 
by  an  officer,  the  description  of  the  offence  must  be,  "  did  [conceal] 
or  carry  away  a  public  record,  [describing  it],  so  that  persons  inter- 
ested therein  could  not  have  access  to  it ;"  or,  as  the  case  may  be, 
"did  advise  or  counsel  to  such  [forgery],  [destruction],  or  [carrying 
away],"  according  to  the  case. 

Art.  756.  Other  forms  against  officers  for  offences  affecting  public 
records. 

"  That  J.  S.  being  an  officer  entrusted  with  the  custody  of  public 

records,  that  is  to  say,  [describe  the  office],  did,  knowingly  and  frau- 
dulently, certify  the  entry  of  an  act  on  the  said  records,  in  the  name  of 
one  A.  B.  who  was  not  present  at  the  time  such  act  purports  to  have 
been  passed  ;  or  [who  did  not  consent  to  such  act],  which  act  is  in 
the  words  following,  [insert  copy  of  the  act."] 

Or, "  did  intentionally  and  fraudulently  place  on  the  said  regis- 
ter or  records,  an  act  in  words  following,  [copy  the  act],  under  the 
date  of  the  day  of  in  the  year  ,  which 

was  not  the  date  at  which  the  said  act  was,  in  truth,  registered  or  re- 
corded, with  intent  to  give  an  illegal  advantage  to  [naming  the  person 
favoured  by  the  fraud  ;  or  say,  to  some  one  to  the  jurors  unknown."] 


600  CODE  OF  PROCEDURE. 

Or, "did  fraudulently  permit  A.  B.  or  [some  person,  to  the 

jurors  unknown,]  to  personate  one  I.  K.,  and  in  his  name  and  without 
his  authority,  in  the  execution  of  an  act,  entered  or  intended  to  be 
entered  on  such  record  or  registry." 

Or, "  did  undesigned  ly,  and  for  want  of  proper  care,  suffer  the 

said  records,  so  entrusted  to  his  care,  [or  some  part  of  the  records, 
describing  it,]  to  be  [defaced,]  or  [taken  away,]  [or  lost,]  or  to  be 
altered,  so  that  a  certain  [act]  which  was  truly  entered  on  the  said  re- 
cord or  registry,  in  the  following  words,  [insert  a  copy  of  the  original 
(act)],  appeared,  after  such  alterations,  to  be  an  [act]  in  the  words  fol- 
lowing, [insert  the  (act)  as  altered];  by  reason  of  which  [alterations,] 
[defacement,]  [obliterations,]  or  [loss,]  one  A.  B.  was  injured  in  his 
[property,]  [condition,]  or  [reputation,"]  according  to  the  case. 

Or, did,  in  his  official  capacity,  certify  as  true  that  [insert  the 

act  falsely  certified]  when,  in  fact  and  truth,  the  part  so  certified  was 
false  ;  by  reason  of  which  false  certificate  one  A.  B.  was  injured,"  &c. 
[as  in  the  last  charge], 

If  in  the  last  case  the  accusation  be,  that  the  falsehood  was  fraudu- 
lently certified,  it  must  be  so  stated  ;  but  need  not,  unless  specially 
intended  inasmuch  as  the  mere  falsehood  is  a  misdemeanor,  and  the 
doing  it  fraudulently  is  a  crime. 

Art.  757.  Indictment  for  using  a  record  so  forged,  or  fraudulently 
made,  or  entered. 

[Charge  the  offence  according  to  to  the  circumstances,  as  set 

forth  in  one  of  the  preceding  forms  of  this  chapter,  and  then  add,] 
"and  the  jurors  aforesaid  do  further  present,  that  Y.  Z.  well-knowing 
the  premises,  afterwards,  on  the  day  of  in  the 

parish  of  L.  [used  the  said  record  or  act,  so  (forged,)  or  fraudulently 
entered,]  or  [made,]  or  registered,  or  [recorded]  on  the  said  [false  declar- 
ation,] [as  the  case  may  be,]  producing  the  same  in  a  court  of  the  par- 
ish of  L.  [stating  the  court]  as  testimony,  or  by  [state  the  means  by 
which  advantage  was  endeavoured  to  be  derived  from  the  fraudulent 
act."] 


CHAPTER  X. 


Of  the  forms  used  in  prosecutions  for  offences  against  the  current 
coin  and  public  securities. 

Art.  758.  Indictment  for  counterfeiting. 

"  Did  counterfeit  [two  gold  coins  of  the  United  States,  called 

eagles  ;  or  one  silver  coin  of  the  Kingdom  of  Spain  or  of  the  Repub- 
lic of  Mexico,  called  a  dollar  ;  or  one  gold  coin  of  Portugal,  called  a 
half-johannes  ;  or  any  other  gold  or  silver  coin,  according  to  the  case, 
describing  them  only  by  their  popular  names,  without  adding  their 
value  or  any  other  description."] 

Art.  759.  Indictment  for  passing  or  offering  to  pass. 

That  J.  S.  one,  &e.  [as  in  the  form]  having  in  his  possession  one 

counterfeited  gold  coin  of  the  United  States,  called  an  eagle,  or  one 
[describing  the  counterfeited  coin  as  above],  and  knowing  the  same  to 


CODE  OF  PROCEDURE.  601 

be  counterfeited,  did,  on  the  day  and  year  last  aforesaid,  at  the  parish 
of  L.,  pass  or  offer  to  pass  the  same  [as  the  case  may  be]  to  one  I.  K. 
or  to  some  person  to  the  said  jurors  unknown,"  &c. 

Art.  760.  Indictment  for  having  in  possession  dies  or  other  instru- 
ments. 

"  That  J.  S.  on  the  day  of  in  the  year 

,  at  the  parish  of  L.,  had  in  his  possession  a  die  [or  some 
other  instrument,  describing  it  as  a  punch,  screw,  or  other  implement, 
by  name,]  such  as  is  usually  employed  solely  for  the  coinage  of  money, 
with  the  intent  of  committing  the  crime  of  counterfeiting,  or  of  aiding 
therein." 

Or, <(  did,  on  the  day  of  in  the  year  , 

at  the  parish  of  L.,  repair  a  die  [or  other  instrument,  describing  it,  as 
a  punch,  screw,  or  other  implement,  by  name,]  such  as  is  usually  em- 
ployed solely  in  the  coinage  of  money,  with  the  intention  of  commit- 
ting  the  crime  of  counterfeiting,  or  of  aiding  therein." 

Or, "had  in  his  possession  and  did  conceal  certain  base  metal 

prepared  for  coinage,  with  the  intention,"  &c.  [as  above.] 

Art.  761.  Indictment  for  having  counterfeit  coins  in  possession  with 
intent  to  pass  them. 

"That  J.   S.  on  the  day  of  in  the  year 

,  at  the  parish  of  L.,  had  in  his  possession  [three  counterfeit- 
ed gold  coins  of  the  United  States,  called  half  eagles,  and  ten  counter- 
feited silver  coins  of  the  Republic  of  Mexico,  called  dollars],  with  intent 
to  pass  them  as  true,  or  cause  them  to  be  passed  as  true,  contrary  to 
the  laws,"  &c. 

Art.  762.  For  diminishing  the  weight  of  coins. 

"That  J.  S.  having  in  his  possession    [ten  gold  coins  of  the 

United  States,  called  eagles,]  with  intent  to  profit,  did,  on  the 
day  of  in  the  year  ,  in  the  parish  of  L.,  diminish  the 

weight  of  the  said  coins,  and  did  afterwards,  on  the  same  day  and  year, 
at  the  place  aforesaid,  pass  [or  attempt  to  pass,  according  to  the  case], 
the  same  for  the  value  the  said  coins  had  be  fore  the  weight  was  so 
diminished."  [Or,  after  the  charge  of  diminishing  the  weight,  as  above 
stated,  insert,]  "  did  send  or  carry  the  same  to  [stating  the  place]  to  be 
passed  for  the  value  the  said  coins  had  before  they  were  so  diminished 
in  value,"  &c. 


CHAPTER  XI. 


Forms  used  in  prosecutions  for  offences  against  the  public  receivers. 

Art.  763.   Indictment  against  receivers  of  public  money  for  the  frau- 
dulent appropriation  thereof. 

«  That  J.  S.  being  a  person  legally  empowered  to  receive  mo- 
ney or  [security   for  money]  for  the  state,  or  for  the  corporation  of 
[giving  the   title  of  the    corporation],  by  virtue  of  his  office  [state 
the  description  or  name  of  the  office]  did,  on  the  day   « 
in  the  year                ,  and  on  sundry  other  days  between  tha 
time  and  the  day  of  commencing  the  prosecution  for  this  offence,  ille- 
4  A 


602  CODE  OF  PROCEDURE. 

gaily  appropriate  certain  large  sums  of  money  [or  certain  securities  for 
money,  describe  them],  amounting  in  all  to  one  thousand  dollars,  which 
he  had  before  that  time  received  for  the  state  of  Louisiana,  [or  for  the 
public  corporation,  naming  it]  ;  and  did,  on  the  day  of 

in  the  year  ,  last  aforesaid,  at  the  said  parish,  by  rendering  a  false 

account,  or  [as  the  case  may  be]  by  producing  false  vouchers  [describ- 
ing them,]  or  by  other  means  [describing  those  means,]  did  endeavour 
to  conceal  such  illegal  appropriation,  with  intent  to  defraud  the  state 
of  Louisiana,  [or  the  corporation  of  (naming  it)],  of  the  said  moneys 
[or  securities,  as  the  case  may  be."] 

Art.  764.  Indictment  for  illegal  appropriation  with  intent  to  restore 
the  same. 

As  in  the  preceding  form,  omitting  the  charge  of  rendering  a  false 
account  and  all  the  subsequent  part  of  the  charge,  and  instead  thereof 
state,  "  and  the  jurors  further  present  that  on  the  day  of 

in  the  year  ,  at  the  parish  of  L.,  demand  was  made  by  A.  B. 

a  person  legally  authorized  for  that  purpose  by  the  state  [or  the  corpor- 
ation] from  the  said  J.  S.  of  the  sum  [or  of  the  securities]  so  illegally 
appropriated  by  him  ;  but  that  he  did  not,  within  three  days  after  such 
demand,  pay  the  same." 

Art.  765.  Indictment  for  not  depositing  public  money. 

"  That  J.  S.  being  a  person  legally  empowered  to  receive  money 

or  securities  for  money  for  the  state,  [or  for  the  corporation  of  (naming 
it)]  by  virtue  of  his  office  [state  what  it  was],  did,  on  the  day  of 

in  the  year  ,  at  the  parish  of  receive  a  sum  [or  sums, 

as  the  case  may  be],  of  money  [or  securities]  to  the  amount  of  three 
hundred  dollars  and  upwards,  and  did  not,  within  three  days  after  hav- 
ing so  received  the  said  sum  of  money  or  securities,  deposit  the  same 
in  an  incorporated  bank,  according  to  the  directions  given  by  law, 
although  a  bank  of  that  description,  to  wit,  the  bank  of  L.  was  within 
three  leagues  of  the  place  of  abode  of  the  said  J.  S." 

If  the  bank  was  more  than  three  leagues  and  not  more  than  twenty 
from  the  receiver's  abode,  then  the  charge  must  be,  '"'that  he  did  not 
make  the  deposit  within  fifteen  days  after  receiving  the  same,  and  that 
the  treasurer  of  the  state  did  not  enlarge  the  time  allowed  for  making 
the  said  deposit." 

Art.  766.  Indictment  for  extortion  by  a  receiver. 

"That  J.  S.  being  a  person  legally  appointed,  by  virtue  of  his 

office  [state  the  office]  to  receive  taxes  for  the  state  [or  for  the  corpora- 
tion of  L.]  on  the  [state  the  date  and  place],  did,  under  pretence  of  col- 
lecting the  said  tax,  extort  from  one  A.  B.  the  sum  of  ,  which 
was  not  due  for  such  tax;  or  [did  attempt  to  extort  from  A.  B.  a  sum  of 
more  than  was  really  due  for  such  taxes];  or  did  demand  a  sum 
of  or  an  emolument  of  [describing  the  nature  of  the  emolument,] 
or  [a  service  or  a  favour,  describing  the  nature  thereof  particularly,] 
from  A.  B.  as  a  consideration  for  granting  a  delay  in  the  collection  of 
a  sum  of  then  due  from  the  said  A.  B.  for  taxes  to  the  said  state 
[or  corporation];  or  as  a  consideration  [stating  any  other  consideration 
in  relation  to  the  collection  of  such  money,  for  which  the  said  sum 
was  paid,  or  such  emolument,  service,  or  favour  was  granted,  unless  it 
were  paid  or  given  for  the  emolument  allowed  by  law  for  such  collec- 
tion,"] &c. 

Art.  767.  Indictment  for  preventing  the  collection  of  public  moneys 
by  force. 


CODE  OF  PROCEDURE.  603 

"That  on  the  day  of  in  the  year    ,         ,  at  the 

parish  of  one  A.  B.  was  duly  authorized  as  [sheriff  of  the  said 

parish,  or  other  office,  designating  it],  to  enforce  the  payment  of  taxes 
[or  other  debt,  stating  of  what  kind],  due  to  the  state  [or  to  a  public 
corporation,  naming  it],  and  J.  S.  on  the  day  and  year  and  at  the  place 
aforesaid,  did,  by  force,  attempt  to  prevent,  or  [did,  by  force  or  threats 
of  force,  prevent]  the  said  A.  B.  from  seizing  the  goods  of  one  C.  D., 
[or  state  any  other  act  which  he  was  prevented  from  doing],  with  in- 
tent to  enforce  the  payment  of  a  sum  of  due  from  him  to  the  said 
C.  D.  to  the  state,  [or  to  the  corporation,  naming  it],  for  taxes,  [or  for 
any  other  debt,  stating  it],  which  seizure  [or  other  act  in  which  he  was 
obstructed,  stating  it,]  was  a  duty  required  of  the  said  A.  B.  by  law 
relative  to  the  collection  of  taxes  [or  debt."] 


CHAPTER  XII. 


Forms  of  indictment  for  offences  which  affect  foreign  commerce. 

Art.  768.  Charge  for  exporting  flour  without  inspection. 

"  Did  export  from  this  state  [or  ship  for  the  purpose  of  exporta- 
tion] on  board  the  ship  called  the  [Andrew  Jackson]  [one  hundred 
barrels  of  flour]  without  having  caused  the  same  to  be  inspected,  accord- 
ing to  the  directions  of  the  laws  of  the  state  in  such  case  provided." 

Art.  769.  For  counterfeiting  the  mark  of  an  inspector. 

"Did  COUNTERFEIT  the  [mark],  or  [brand], or  [stamp],  directed 

by  the  laws  of  this  state  to  be  made  or  placed  on  all  flour  exported  from 
the  port  of  New  Orleans,  and  made  or  placed  such  counterfeit  [mark, 
or  brand,  or  stamp,]  on  [one  hundred  barrels  of  flour,"]  &c. 

Art.  770.  For  placing  articles  of  inferior  value  in  a  package,  with 
intent  to  defraud. 

"  Did,  with  intent  to  defraud,  put  into  a  [hogshead]  apparently 

filled  with  [tobacco],  or  [a  bale  apparently  filled  with  cotton],  or  [a  box 
apparently  filled  with  spermaceti  candles],  or  [a  package  apparently  filled 
with  cochineal],  or  [any  other  cask,  bale,  box,  or  package,  describing 
it,  with  apparent  articles],  being  merchandize  usually  sold  by  weight,  a 
quantity  of  [rubbish],  [or  any  other  article,  describing  it],  being  of  less 
value  than  the  said  tobacco,  [or  other  article],  with  which  the  said  hogs- 
head, or  [bale],  or  [package],  or  [box],  was  apparently  filled,"  &c. 

Art.  771.  For  selling  merchandize  with  articles  of  inferior  value 
concealed  therein. 

"Did  [sell],  or  [barter],  or  [give  in  payment],  to  A.  B.,  or 

[expose  for  sale],  or  [ship  for  exportation  in  a  certain  ship  called  A.  J.] 
a  [bale  apparently  filled  with  cotton,  or  other  articles  as  above],  being 
merchandize  usually  sold  by  weight,  with  a  quantity  of  [rubbish]  con- 
cealed therein,  with  intent  to  defraud,  contrary,"  &c. 

Art.  772.   For  destroying  or  injuring  a  vessel,  with  intent  to  defraud. 

"That  J.  S.  within  the  limits  of  this  state,  that  is  to  say,  in  the 

river  Mississippi,  below  the  Balize,  in  the  parish  of  Plaquemines,  he 
being  then  and  there  the  owner,  [part  owner],  [freighter],  of  a  certain 
[schooner]  called  the  [Bee],  or  being  then  and  there  employed  as 
[master],  [supercargo],  [seaman],  or  as  [state  any  other  capacity],  on 


604  CODE  OF  PROCEDURE. 

board  a  certain  schooner  called  the  [Bee],  with  intent  to  defraud  or 
injure  A.  B.  who  was  [or  some  person  or  persons,  to  the  jurors  un- 
known, who  was  or  were]  the  [owner  or  owners  of  the  said  vessel]  or 
[of  the  cargo  on  board,  or  of  any  part  thereof],  or  [the  underwriters  on 
the  said  vessel,  or  the  cargo  on  board,  or  some  part  thereof,]  or  those 
interested  in  the  said  schooner,  or  the  said  cargo,  [or  in  the  [voyage], 
[freight],  or  [profits]  of  the  said  [schooner]]  ;  did  [destroy  the  said 
schooner],  or  did  injure  the  said  [schooner,]  by  [running  her  on  shore], 
or  [cutting  away  the  masts],  or  [doing  other  injury,  describing  it."] 

If  the  offence  be  committed  on  the  high  seas,  it  must  be  so  stated, 
and  it  must  be  averred  that  the  offender,  at  the  time,  was  a  citizen  of 
this  state,  or  domiciliated  within  it. 

Art.  773.   For  fraudulent  insurance. 

"That  J.  S.  on  the  day  of  in  the  year  ,  at  the 

parish  of  New  Orleans,  caused  insurance  to  be  made  for  one  thousand 
dollars,  by  the  insurance  company  called  the  New  Orleans  Insurance 
Company,  on  one  hundred  hogsheads  of  rum,  which  he  represented  to 
the  said  insurance  company  as  shipped  [or  about  to  be  shipped]  at 
Jamaica  in  the  West  Indies,  for  New  York,  and  pretended  that  the 
said  hogsheads  contained  Jamaica  rum  of  the  first  proof,  with  intent  to 
defraud  the  said  New  Orleans  Insurance  Company,  had  actually  shipped 
one  hundred  hogsheads  containing  water,  [or  rum  of  less  than  one  half 
the  value  of  Jamaica  rum  of  the  first  proof],  instead  of  one  hundred 
hogsheads  of  Jamaica  rum  of  the  first  proof,  contrary,"  &c. 

If  the  insurance  were  made  at  some  place  not  within  this  state,  the 
goods  must  be  stated  as  having  been  represented  as  shipped,  or  about 
to  be  shipped,  within  the  state  of  Louisiana,  and  goods  of  inferior  value 
to  have  been  actually  shipped  there. 

Art.  774.   Against  an  inn-keeper  for  concealing  a  seaman. 

"That  J.  S.  being  the  keeper  of  a  tavern,  or  [lodging-house,  or 

boarding-house],  did,  on  the  day  of  in  the  year  ,  at 

the  city  of  New  Orleans,  entertain,  [lodge],  or  [conceal],  A.  B.  a  sea- 
man who  had,  within  one  month  previous  to  the  day  last  aforesaid, 
DESERTED  from  a  merchant  vessel  called  the  D.  in  the  port  of  New 
Orleans,  he  the  said  J.  S.  knowing  that  the  said  A.  B.  had  so  deserted." 

Art.  775.  Against  a  master  of  a  vessel  shipping  a  seaman  who  has 
deserted. 

"That  J.  S.  being  the  master  of  a  ship  called  the  D.,  lying  in 

the  port  of  New  Orleans,  on  the  [insert  the  date  and  parish],  did  SHIP 
as  a  mariner  on  board  the  said  ship,  one  C.  D.  who  did  not  produce  his 
discharge  from  the  master  of  the  vessel  in  which  he  last  sailed,  he  the 
said  C.  D.  having  deserted  from  a  ship  called  the  Bee,  in  the  said  port 
of  New  Orleans,  within  one  month  before  he  was  so  shipped  by  the 
said  J.  S." 

Art.  776.  For  using  false  weights  and  measures. 

"  That  A.  B.  in  the  weighing  of  a  quantity  of  sugar  sold  to  C.  D. 

on  the  day  of  in  the  year  •  ,  in  the 

parish  of  L.,  did  use  a  false  weight,  knowing  the  said  weight  to  be 
false,  with  a  design  to  defraud." 

The  same  form  as  to  a  false  balance. 

Art.  777.  For  a  false  measure. 

"  That  J.  S.  on  the  day  of  in  the  year 

,  at  the  parish  of  in  the  measuring  a  quantity  [of 


CODE  OF  PROCEDURE.  605 

whiskey],  or  [of  cloth],  sold  on  that  day  to  C.  D.,  did  use  a  false  mea- 
sure, knowing  the  same  to  be  false,  with  intent  to  defraud." 

Art.  778.  Warrant  of  arrest  and  for  the  seizure  of  false  weights,  or 
measures. 

"  By  A.  B.  [one  of  the  judges,  &c.]     To  the  [sheriff  of  the  city  and 
parish  of  New  Orleans.] 

"  You  are  commanded  to  arrest  J.  S.  charged  on  oath  before  me, 
with  having  fraudulently  used  a  false  weight  in  the  weighing  of  a  cer- 
tain quantity  [of  sugar]  sold  to  C.  D.,  knowing  such  weight  to  be 
false  ;  and  you  are  also  commanded  to  seize  the  weights  used  by  the 
said  J.  S.  in  weighing  the  articles  sold  by  him  in  his  trade  of  [a  gro- 
cer, or  other  trade,  as  the  case  may  be]  ;  and  to  bring  as  well  the  said 
weights  as  the  said  J.  S.  before  me,  on  [insert  the  return  of  the  war- 
rant], to  be  dealt  with  according  to  law.'7 

Art.  779.  When  the  weights,  or  balances,  or  measures,  are  brought 
before  the'  magistrate,  in  pursuance  of  the  above  warrant,  he  shall 
cause  the  measures  and  weights  to  be  compared  and  tested  in  his  pre- 
sence, by  the  officer  appointed^  to  keep  the  standard  of  weights  and 
measures  ;  and  if  it  be  a  balance  that  is  the  subject  of  prosecution,  he 
shall  examine  it,  and  shall  retain  all  those  that  appear  to  be  false,  to 
be  used  on  the  trial,  and  afterward  destroyed  according  to  law. 

Art.  780.  The  above  forms  are  to  serve  for  purchases  by  false 
weights,  measures,  or  balances,  changing  the  words  "  sold  to"  for  the 
words  "  purchased  from." 

Art.  781.   For  altering  marks. 

"That  J.  S.  having  [one  hundred  barrels  of  flour,  which  had 

been  inspected  by  the  officer  appointed  for  that  purpose  by  virtue  of 
the  laws  of  this  state,  and  which  barrels  had  been  marked  by  the  said 
officer  with  a  mark,  denoting  that  the  flour  contained  in  the  said  bar- 
rels was  of  inferior  quality,  did,  on  the  day  of 
in  the  year  ,  at  the  parish  of  New  Orleans,  falsely  alter  the 
said  marks,  so  as  to  make  it  appear  that  the  said  officer  had  put  on  the 
said  barrels  a  mark  denoting  that  the  flour  contained  in  the  said  bar- 
rels was  of  the  best  quality/']  &c. 

Art.  782.   Form  of  indictment  for  counterfeiting  a  mark  or  brand. 

"  Did,  with  intent  to  defraud,  counterfeit  the  brand  or  mark 

used  by  the  public  officer  appointed  to  inspect  tobacco,  [and  by  him  to 
denote  that  tobacco  was  of  a  good  quality]  by  marking  the  said  coun- 
terfeit brand  or  mark  on  one  hundred  hogsheads  of  tobacco." 

Art.  783.  Fraudulently  using  a  marked  cask,  or  box,  &c. 

"  That  J.  S.  having  in  his  possession  [ten  pipes  marked,  by  one 

of  the  officers  of  the  customs  of  the  United  States  in  the  port  of  New 
Orleans,  as  containing  French  brandy],  did,  on  the  day 

of  in  the  year  ,  at  the  parish  of  L.  fraudulently 

use  the  same  for  the  sale  of  liquor  of  an  inferior  quality  than  that  de- 
noted by  the  said  mark,"]  &c. 

Art.  784.   Forging  a  written  instrument. 

"  Did  make  a  false  instrument  in  writing,  of  which  the  following 

is  a  copy,  [insert  copy  of  the  instrument],  with  intent  to  injure  or 
defraud,"  &c. 

Art.  785.  For  forging  by  altering. 

"  That  A.  B.  on  [insert  the  date  and  place]  having  in  his  power 

a  certain  instrument  in  writing  in  the  following  words  and  [figures], 
to  wit,  [insert  copy  of  the  instrument  as  it  was  before  it  was  altered], 


606  CODE  OF  PROCEDURE. 

made  such  alterations  in  the  said  instrument  as  to  make  it  appear  to  be 
of  the  following  tenor  [insert  copy  of  the  instrument  as  altered]  with 
intent  to  [injure]  or  [defraud,"]  &c. 

Art.  786.  When  from  obliteration  in  the  original  instrument  it  may 
be  difficult  to  prove  its  exact  tenor,  it  will  be  sufficient,  instead  of 
inserting  the  copy  of  the  original  instrument,  to  state,  "  that  having 
in  his  possession  a  certain  instrument  in  writing,  by  which,  among 
other  things,  [he  promised  to  pay  to  the  said  J.  S.  at  the  time  men- 
tioned in  the  said  instrument  the  sum  of  one  thousand  dollars],  [or 
insert  any  other  part  of  the  instrument  that  was  altered],  but  of 
which  the  other  contents  are  not  sufficiently  known  to  the  jurors  to 
enable  them  to  set  the  same  literally  forth,  the  said  J.  S.  on  the 
clay  of  in  the  year  ,  in  the  parish  of 

L.,  altered  the  said  instrument  so  as  to  change  the  same  into  an  instru- 
ment of  which  the  following  is  a  copy,  [insert  the  copy  of  the  instru- 
ment altered],  with  intent  to  [injure]  or  [defraud,"]  &c. 

Art.  787.  For  forgery  by  writing  over  or  on  the  back  of  a  true  sig- 
nature. 

"  That  J.  S.  having  in  his  possession  a  paper  on  which  was  writ- 
ten a  true  signature  of  A.  B.,  without  any  legal  authority  and  with 
intent  to  defraud,  wrote  over  the  said  signature,  [or  on  the  other  side 
of  the  paper  that  contained  such  signature],  the  words  following,  to 
wit,  [insert  the  instrument],  with  intent  to  injure  or  defraud." 

Art.  788.  For  forgery  by  adding  a  signature. 

"  That  J.  S.  on  the  day  of  in  the  year 

,  at  the  parish  of  L.,  having  in  his  power  an  instrument  in 
the  following  words,  [insert  the  copy  of  the  instrument],  written  by 
A.  B.  [or  by  some  person  to  the  jurors  unknown,  as  the  case  may  be], 
altered  the  same  by  adding  thereto  the  false  signature  of  the  name  of 
A.  B.  with  intent  to  injure  or  defraud." 

Art.  789.  For  forgery  by  altering  an  instrument  made  by  the  offen- 
der himself. 

'"  That  J.  S.  having  before  that  time  made  a  certain  instrument  in 
writing,  of  which  the  following  is  a  copy,  [insert  the  copy],  deliv- 
ered the  same  to  A.  B.,  and  that  on  the  day  of 
in  the  year                   ,  at  the  parish  of  L.,  the  said  instrument  then 
being  the  property  of  [insert  the  name  of  the  holder]  he  the  said  J. 
S.  with  intent  to  defraud  [or  injure],  altered  the  said  instrument  so  as 
to  make  it  appear  to  be  one  of  the  tenor  following,  [insert  copy  of  the 
instrument  as  altered,"]  &c. 

Art.  790.  When  the  forgery  consists  in  making  an  instrument  in 
the  name  of  a  fictitious  person,  the  indictment  must  be  in  the  form 
above  prescribed,  for  "forging  a  written  instrument"  without  any 
special  avowal  that  the  name  of  the  person  was  fictitious,  and  it  may 
be  proved  on  the  trial  without  such  special  averment. 

Art.  791.  Form  of  the  charge  for  making  an  instrument  with  a 
false  date. 

"ThatJ.  S.  on  [insert  the  date  and  place]  made  a  certain  in- 
strument in  writing,  of  which  the  following  is  a  copy,  [insert  it], 
which  instrument  was  falsely  dated,  with  intent  to  [injure]  or  [de- 
fraud] a  certain  A.  B.  [insert  the  name  of  the  person  whose  interest 
would  have  been  affected  by  the  false  dating  of  the  instrument  if  the 
same  had  been  true,"]  &c. 


CODE  OF  PROCEDURE.  607 

Art.  792.  Form  of  charge  for  uttering  an  instrument  under  pre- 
tence that  it  was  the  act  of  another. 

"  That  J.  S.  on  the  day  of  in  the  year 

,  at  the  parish  of  L.,  made  a  certain  instrument  in  writing, 
of  which  the  following  is  a  copy,  [insert  it],  and  with  intent  to  de- 
fraud [uttered  or  passed  it,  as  the  case  may  be],  to  A.  B.  as  the  act  of 
another  person  bearing  the  name  of  J.  S." 

Art.  793.  Form  of  a  charge  for  making  a  note  in  the  offender's 
name  on  the  other  side  of  a  paper  containing  a  blank  signature. 

"That  J.  S.  having  in  his  power  a  paper  containing  the  true 

signature  of  one  A.  B.  on  the  day  of  in  the 

year  ,  at  the  parish  of  L.,  wrote  on  the  other  side  of  the 

paper,  containing  such  signature,  a  [promissory  note  or  bill  of  ex- 
change, as  the  case  may  be],  purporting  to  be  the  bill  [or  note]  of 
him  the  said  J.  S.  and  signed  with  his  name  [or  firm,  as  the  case  may 
be],  so  as  to  make  the  said  signature  appear  as  the  indorsement  of  the 
said  [bill  or  note],  without  any  lawful  authority  and  with  intent  to 
defraud  [or  injure."] 

Art.  794.  Form  of  charge  for  uttering  or  passing  illegal  instruments 
in  writing. 

"  That  J.  S.  on  the  [insert  date  and  place]  having  in  his  pos- 
session, or  under  his  control,  an  instrument  in  writing,  of  which  the 
following  is  a  copy,  [insert  it],  and  knowing  the  same  to  be  [forged] 
[or  to  have  been  fraudulently  made,  if  it  be  not  a  forgery,  but  is  one 
of  those  instruments  the  making  or  uttering  of  which,  by  any  disposi- 
tion of  the  Penal  Code,  are  declared  to  be  an  offence],  [uttered]  or 
[passed]  the  said  instrument  to  one  C.D.  with  intent  to  defraud." 

Art.  795.  For  engraving  a  plate,  or  preparing  implements  or  mate- 
rials for  the  purpose  of  forging  bank  notes. 

"  That  J.  S.  on  [state  the  date  of  time  and  place],  did  engrave 

[or  as  the  case  may  be,  had  in  his  possession]  a  plate,  or  [did  prepare 
paper],  [a  rolling  press],  or  other  implements  or  materials,  [declaring 
what  they  were],  for  the  purpose  of  [their  or  its]  being  employed  in 
forging  the  notes  of  a  bank  [called  the  Bank  of  New  York,  doing  busi- 
ness in  the  city  of  New  York],  or  [called  the  Bank  of  Canada,  doing 
business  at  Montreal],  or  [any  other  bank  wherever  situated],  knowing 
such  purpose,  and  with  intent  to  defraud." 

Art.  796.  For  having  a  forged  or  fraudulent  instrument  in  possession, 
with  intent  to  utter, 

"  That  J.  S.  on  the  day  of  in  the  year  ,  at  the 

parish  of  L.,  had  in  his  possession  a  certain  instrument  in  writing,  of 
which  the  following  is  a  copy  [insert  it],  and  knowing  the  same  to 
have  been  forged,  [or  to  have  been  fraudulently  made,  if  it  be  not  a 
forgery,  but  is  one  of  those  instruments  the  making  or  uttering  of  which, 
by  the  Code  of  Crimes  and  Punishments,  is  declared  to  be  an  offence], 
with  intent  to  utter  or  pass  the  same,  and  to  defraud  or  injure." 

Art.  797.  For  procuring  a  signature  by  a  false  reading  or  false  inter- 
pretation of  the  instrument. 

"That  one  A.  B.  being  a  person  who  from  infirmity  or  igno- 
rance [as  the  case  may  be]  could  not  read,  [or  who  was  ignorant  of  the 
language,  naming  that  in  which  the  instrument  was  written],  J.  S.  on 
the  day  of  in  the  year  ,  at  the  parish  of  L.,  with 
intent  to  defraud,  induced  the  said  A.  B.  to  sign  as  his  act  a  certain 


60S  CODE  OF  PROCEDURE. 

instrument  in  writing,  of  which  the  following  is  a  copy  [insert  it],  by 
falsely  pretending  to  [read,  or  to  interpret  the  said  instrument,  or  by 
misrepresenting  its  contents,  as  the  case  may  be],  so  as  to  cause  the 
said  A.  B.  to  believe  that  the  said  instrument  purported  to  be  mate- 
rially different  in  this,  to  wit,  [state  the  misrepresentation,  or  the  false 
reading,  or  the  false  interpretation],  contrary,"  &c. 

Art.  798.  If  in  the  case  provided  for  by  the  last  preceding  form,  the 
act  was  not  signed  but  assented  to  in  a  manner  that  would,  if  there  had 
been  no  error,  have  made  the  instrument  the  act  of  the  party,  it  must 
be  so  stated,  instead  of  charging  that  it  was  signed. 

Art.  799.  Charge  for  falsely  substituting  an  instrument  instead  of  the 
one  intended  to  be  signed. 

"That  A.  B.  having  the  intention  of  signing  or  giving  his  legal 

assent  to  a  certain  instrument  in  writing,  so  as  to  make  it  his  act,  which 
was  prepared  by  him  or  by  his  direction,  and  purported  to  be  [insert 
copy  of  it  if  it  can  be  procured,  if  not,  state  the  general  purport  thereof, 
and  particularly  the  parts  in  which  it  differed  from  the  substituted  in- 
strument] ,  one  J.  S.  falsely  and  without  the  knowledge  of  the  said 
A.  B.  substituted  for  the  instrument  so  intended  to  be  signed,  or  legally 
assented  to,  another  instrument  in  the  following  words  [insert  copy,] 
and  by  means  of  such  false  substitution  induced  the  said  A.  B.  to  sign 
[or  assent  to,  as  the  case  may  be],  the  said  last  mentioned  instrument, 
with  intent  to  defraud,"  &c. 

Art.  800.  If  either  of  the  offences,  charged  by  the  two  last  forms, 
shall  be  committed  by  a  public  officer  whose  duty  it  is  to  record  public 
acts,  or  by  a  counsellor  or  attornej'-at-law,  that  circumstance  must  be 
charged. 

Art.  801.   Charge  in  an  indictment  for  falsely  personating  another. 

"That  J.  S.  of  the  city  of  New  Orleans,  broker,  pretending  to 

be  [J.  S.  of  the  parish  of  St  Francisville,  planter],  or  [pretending  to  be 
A.  B.]  on  the  day  of  in  the  year  ,  at  the  parish  of  L. 

Before  [I.  K.  being  parish  judge  of  the  said  parish,  acting  as  notary 
public],  in  the  name  of  the  said  [J.  S.  of  St  Francisville,  or  of  the  said 
A.  B.  ]  gave  his  assent  to  an  act  of  which  the  following  is  a  copy  [in- 
sert it],  and  declaring  that  he  could  not  write,  authorized  the  said  notary 
to  record  his  assent,  he  personating  the  said  [J.  S.  of  St  Francisville, 
or  the  said  A.  B.]  to  the  said  act,  with  intent  to  defraud." 

Art.  802.  Indictment  for  making  a  false  schedule  in  case  of  insolvency. 

"  That  J.  S.  having  presented  to  the  [district  court  of  the  first 

district]  a  petition  praying  for  a  meeting  of  his  creditors,  in  order  [that 
they  might  receive  a  cession  of  his  effects],  or  [grant  him  a  respite] 
made  a  false  account  of  his  [credits],  [property]  or  [debts]  in  the  sche- 
dule annexed  to  his  petition,  in  this,  that  the  said  J.  S.  omitted  to 
place  on  the  said  schedule  [a  tract  of  land  or  other  property,  describing 
it],  or  [a  credit  of  a  debt  due  to  him  from  A.  B.  of  one  hundred  dol- 
lars], or  [a  debt  due  from  him  to  C.  D.  for  one  hundred  dollars],  or  [did 
place  on  his  said  schedule  a  sum  of  one  hundred  dollars  as  due  by  him  to 
I.  K.  when  in  fact  no  such  sum  was  due],  and  did  exhibit  the  said  false 
account,  in  such  court,  as  true,  with  intent  to  defraud,"  &c. 

Art.  803.  For  fraudulently  destroying  or  concealing  books  of  ac- 
count in  cases  of  insolvency. 

"  That  J.  S.  having  presented  his  petition  to  [state  what  court], 

in  order  to  procure  a  meeting  of  his  creditors,  for  the  purpose  of  making 


CODE  OF  PROCEDURE.  609 

to  them  a  cession  of  his  property,  [or  obtaining  a  respite],  and  obtain- 
ing the  relief  in  such  cases  granted  by  law,  did  fraudulently  destroy  [or 
conceal]  a  certain  book  of  accounts  [or  papers]  relative  to  his  estate, 
which,  by  law,  he  was  bound  to  produce  for  the  use  and  inspection  of 
his  said  creditors,  that  is  to  say,  one  book  of  account  called  a  ledger, 
containing  accounts  from  the  to  [or  otherwise, 

describing  the  book  or  papers  destroyed  or  concealed."] 

Art.  804.   Making  simulated  conveyances. 

"That  J.  S.  not  having  property  of  sufficient  value  to  pay  his 

debts,  did  on  the  day  of  in  the  year  ,  in  the  parish 

of  L.,  in  order  to  prevent  the  property  hereinafter  mentioned  from  be- 
coming liable  to  the  payment  of  his  debts,  make  an  act  of  which  the 
following  is  a  copy  [inserting  it],  which  act  the  jurors  present  was 
simulated,  and  intended  for  his  own  use,  or  for  that  of  his  family." 

Art.  805.  If  the  property  was  personal  property,  and  no  written 
conveyance  was  made,  say,  "  made  a  verbal  sale  and  delivery  of 
[describing  the  property],  which  sale  the  jurors  present  was  simu- 
lated ,"&c. 

Art.  806.  Form  of  indictment  for  receiving  a  simulated  convey- 
ance. 

Follow  the  preceding  form,  and  at  the  end  add,  "and  the  jurors 
further  present,  that  I.  K.  knowing  the  purposes  for  which  the  said 
[conveyance,]  [mortgage,]  or  [disposition,]  was  made,  and  that  it  was 
simulated,  received  the  same  for  the  purposes  aforesaid,  contrary, "&c. 

Art.  807.   For  suffering  fraudulent  judgments. 

"That  J.  S.  not  having  sufficient  property  to  pay  his  just  debts, 

on  the  day  of  in  the  year  ,  with  intent  to  defraud 

his  creditors,  or  some  one  or  more  of  them,  did  voluntarily  suffer  a 
judgment  to  be  entered  in  the  [parish  court  of  the  parish  of  L.]  in  fa- 
vour of  one  I.  K.  the  sum  of  by  which  the  [real  property  of  the 
said  J.  S.  in  the  said  parish  was  bound]  and  [personal  property  belong- 
ing to  him  was  seized],  which  judgment  the  jurors  present  was  for  a 
sum  not  due,  or  for  a  larger  sum  than  was  really  due,  contrary,"  &c. 

Art.  808.   For  recovering  such  judgment. 

^"That  one  J.  S.  being  on  the  day  of  ,  in  the  year 

',  at  the  parish  of  L.,  not  having  sufficient  property  to  pay  his 
debts,  I.  K.  in  collusion  with  the  said  J.  S.  and  with  intent  to  defraud 
the  creditors  of  him  the  said  J.  S.  or  some  one  or  more  of  them,  did 
recover  a  judgment  in  the  parish  of  L.  for  the -sum  of  which  was 

voluntarily  suffered  to  be  entered  by  the  said  J.  S.  with  intent  to  de- 
fraud his  creditors,  or  some  one  or  more  of  them;  and  the  jurors  further 
present,  that  the  said  I.  K.  recovered  the  said  judgment  for  a  sum  not 
due,  or  for  a  sum  larger  than  was  due  from  the  said  J.  S.,  and  that 
[real  property  of  the  said  J.  S.  has  been  incumbered],  and  [personal 
property  belonging  to  him  has  been  seized],  under  the  said  judgment." 

Art.  809.   For  conveying  without  consideration  to  defraud  creditors. 

[Beginning  as  in  the  last  form.]  "  Did  without  any  consideration  [or 
for  an  inadequate  consideration,]  [convey,]  [mortgage,]  or  [affect  by  an 
onerous  condition,  stating  it,]  all  that  [describe  the  property  sold,  mort- 

",  or  affected,]  to  one  I.  K." 
Art.  810.   For  receiving  such  conveyance. 

[Add  to  the  last  preceding  form,  «  which  [conveyance,]  [mortgage,] 
4  B 


610  CODE  OF  PROCEDURE. 

or  [onerous  condition,]  the  said  I.  K.  did  on  the  day  and  year  last 
aforesaid,  at  the  place  aforesaid,  receive,  he  then  well  knowing  the 
said  fradulent  intent." 


CHAPTER  XIII. 


Forms  of  indictments  for  offences  affecting  public  property  held  for 

common  use. 

Art.  811.   Form  of  indictment  for  maliciously  breaking  levees. 

"  Did  maliciously  breakdown  the  levee,  or  embankment  of  the 

river  Mississippi,  opposite  to  the  plantation  of  A.  B.  in  the  said  parish." 

Art.  812.  For  impeding  navigation  by  embankments,  &c. 

"Did  make  a  certain  wharf  [or  other  construction,  describing 

it,  in  the  bed  of  the  river  Mississippi,  opposite  to  the  lands  of  A.  B. 
in  the  said  parish,  by  which  the  navigation  of  the  said  river  was  imped- 
ed, [or  which  was  made  contrary  to  an  ordinance  of  the  police,  being 
legally  made  on  the  day  of  in  the  year  ,] 

contrary  to  the  laws,"  &c. 

Art.  813.  For  erecting  obstructions  in  a  street  or  public  road. 

"  Did  erect  a  [fence,]  [or  dig  a  ditch,]  [or  make  any  other  ob- 
struction, describing  it,]  in  the  public  road,  [or  street]  [or  square]  in 
the  said  parish,  [near  to  or  opposite  the  house  or  land  of  A.  B.,  or 
otherwise  describing  the  place,]  by  which  the  public  use  of  the  said 
[street,]  [or  road,]  [or  square,]  was  obstructed  ;  [or  did  unlawfully 
destroy  a  bridge  erected  on  the  street  or  public  road,  at  (describing  the 
place,)]  in  the  said  parish." 

Art.  814.  For  obstructing  the  banks  of  navigable  rivers. 

"  Did  on  the  [bank,]  [or  on  the  embankment,]  [or  the  space  set 

apart  by  the  police  regulation  on  the  banks  of  the  river  Mississippi  for  a 
tow  path,]  erect  a  house,  [or  any  other  obstruction,  describing  it,]  by 
which  the  public  use  of  the  said  [bank,  embankment,  or  tow  path,  as 
the  case  may  be,]  was  prevented  [or  rendered  less  convenient."] 


CHAPTER  XIV. 


Forms  of  indictments  for  offences  against  public  health  and  safety. 

Art.  815.  Indictment  for  illegally  carrying  on  a  manufactory  of  gun- 
powder. 

"Did  carry  on  a  manufactory  of  gunpowder,  [or  did  keep 

more  than  ten  pounds  of  gunpowder  at  one  time]  within  three  hundred 
yards  of  a  public  road,  [or  of  a  dwelling  house,  to  wit,  the  dwelling 
house  of  A.  B.  in  the  said  parish,]  [or  of  land  of  A.  B.  he  the  said  A. 
B.  not  having  permitted  the  said  manufactory  to  be  carried  on,]  con- 
trary to  the  laws,"  &c. 

Art.  816.  For  carrying  on  trade  in  a  manner  dangerous  to  health. 


CODE  OF  PROCEDURE.  611 

"That  J.  S.  [being  a  manufacturer  of  parchment  in  the  parish 

of  L.,  did  on  the  day  of  in  the  year  , 

in  the  parish  aforesaid,  suffer  the  water,  in  which  the  skins  used  in  the 
said  manufactory  are  soaked,  to  remain  and  putrefy,]  in  a  manner 
injurious  to  the  health  of  those  who  reside  in  the  vicinity  of  the  said 
manufactory,  contrary,"  &c. 

Art.  817.  For  adulterating  liquors  in  a  manner  injurious  to  health. 

"Did  adulterate,  for  the  purpose  of  selling  the  same,  [one  pipe 

of  wine  intended  for  drinking,]  by  mixing  therewith  a  substance  called 
[sugar  of  lead]  which  rendered  the  said  wine  injurious  to  the  health  of 
those  who  should  drink  thereof." 

Or "  Did  sell  to  one  A.  B.   [one  pipe  of  wine  which  had  been 

adulterated  with  (as  in  the  foregoing  form)]  knowing  the  same  to  be 
adulterated." 

Art.  818.  For  adulterating  drugs. 

"Did  fraudulently  adulterate,  for  the  purpose  of  selling  the 

same,  a  certain  quantity,  to  the  jurors  unknown,  of  a  drug  [called 
quinquina  or  Peruvian  bark,  or  Jesuit's  bark,]  by  mixing  therewith  a 
quantity  of  bark  of  the  oak  tree  in  the  said  drug,  [or  to  make  the  same 
injurious  to  health."] 

Art  819.  For  selling  adulterated  drugs. 

"  Did  sell  to  one  A.  B.  one  ounce  of  a  drug  or  medicine  called 

quinquina  or  Jesuit's  bark,  or  Peruvian  bark,  which  had  been  fraudulent- 
ly adulterated  by  mixing  therewith  a  quantity  of  bark  of  the  oak  tree, 
in  such  mannner  as  to  lessen  the  efficacy  [or  change  the  operation]  of 
the  said  drug,  [or  to  make  the  same  injurious  to  health.""] 


CHAPTER  XV. 


Charges  in  indictments  for  offences  against  morals  and  decency. 

Art.  820.  Keeping  a  disorderly  house. 

"  That  J.  S.  on  several  days  between  the  day  of 

and  the  day  of  in  the  parish  of  L.,  did  keep  a  disor- 

derly house  for  the  purpose  of  public  prostitution." 

Or "  Did  [keep  a  public  tavern,  or  a  house  for  the  sale  of  spiritu- 
ous liquors,  without  having  the  license  required  by  law."] 

Or «<  That  J.  S.  having  a  license  for  keeping  a  tavern  in  the  par- 
ish of  L.,  [or  for  the  sale  of  spirituous  liquors  by  retail,]  did  on  the 
day  of  in  the  year  ,  and  at  divers  other -times 

afterwards,  in  the  parish  of  permit  [here  insert  the  act  forbid- 

den by  the  license  or  by  law  to  be  done  in  the  town,]  in  the  said  tavern." 

Or "  That  J.  S.  having  a  license  to  keep  a  gambling  house  in  the 

parish  of  L.,  did  on  the  day  of  in  the  year  , 

and  at  divers  other  times  afterwards,  permit  [insert  the  act  forbidden 
by  the  license  or  the  law  to  be  done  in  the  gambling  house."] 

Art.  821.   For  publishing  obscene  prints  or  pictures. 

"  Did  [make,  publish,  or  print,  as  the  case  may  be,]  a  certain 

obscene  [print]  [or  picture]  which  [was  shown  to  the  said  J.  S.  on  his 
examination,  if  the  defendant  was  arrested  or  summoned  previous  to  the 


612  CODE  OF  PROCEDURE. 

finding  of  the  indictment,]  is  now  exhibited  to  the  said  jurors  and  will 
be  produced  on  the  trial  of  this  indictment,  but  which  cannot  be  decently 
described  in  words,  and  which  was  manifestly  designed  to  corrupt  the 
morals  of  youth." 

Art.  822.  On  the  examination  of  any  one  accused  of  this  offence,  the 
print  or  picture  must  be  exhibited  to  the  defendant  on  his  examination, 
and  marked  by  the  magistrate  and  others,  so  as  to  be  identified,  and 
shall  also  be  exhibited  to  him  in  court  previous  to  his  arraignment. 

Art.  823.  Form  of  charge  on  an  indictment  for  an  obscene  written  or 
printed  composition. 

"Did  [make,]  or  [publish,]  or  [print]  an  obscene  composition 

[of  which  the  following  is  a  copy,]  which  composition  the  jurors  pre- 
sent was  manifestly  designed  to  corrupt  the  morals  of  youth." 

Art.  824.  For  making  an  obscene  exhibition  of  the  person  in  public. 

"  Did  in  the  public-highway  to  a  number  of  persons  then  pre- 
sent designedly  make  an  indecent  exhibition  of  his  person,  or  [of  the 
person  of  A.  B.]  whereby  the  modesty  of  those  present  was  offended, 
contrary,"  &c. 

Art.  825.  For  uttering  obscene  expressions  with  intent  to  insult  one 
of  the  female  sex. 

"  Did  in  the  presence  and  hearing  of  one  or  more  persons  of  the 

female  sex,  with  design  to  insult  them,  utter  divers  obscene  expressions 
as  follows,  [repeating  them,]  contrary,"  &c. 

Art.  826.  For  seducing  a  woman  under  promise  of  marriage. 

"  That  A.  B.  being  a  woman  of  good  chaste  reputation,  at  the 

parish  of  L.  one  J.  S.  addressed  her  with  proposals  of  marriage,  which 
the  said  A.  B.  received  favourably,  and  the  said  J.  S.  thereupon  made  a 
promise  that  he  would  marry  the  said  A.  B.  ;  and  under  the  faith  of 
that  promise,  on  the  day  of  in  the  year  ,  at  the  parish 

of  L.,  seduced  her,  and  afterwards  failed  to  comply  with  his  said  pro- 
mise." 

Art.  827.  For  soliciting  prostitution. 

"Did  for  hire  received  from  one  A.  B.  procure  the  means  of 

illicit  connexion  between  him  and  a  certain  woman  named  C.  D.  [or  a 
certain  woman  to  the  jurors  unknown."] 

Or,  when  all  the  parties  are  unknown,  state,  "  did  for  hire  procure 
the  means  of  illicit  connexion  between  two  persons  of  different  sexes, 
to  the  jurors  unknown." 

Or,  "did  for  hire  [solicit]  [or  procure]  a  woman  [named  A.  B.]  or  [a 
woman  to  the  Jurors  unknown,]  to  prostitute  her  person  to  a  man  named 
C.  D.  [or  to  a  man  to  the  jurors  unknown."] 

Art.  828.  For  adultery  against  the  wife  and  the  person  with  whom 
the  ciime  is  committed. 

"  That  Anne  B.  being  the  lawful  wife  of  C.  D.  on  the  day 

of  in  the  year  ,  at  the  parish  of  committed  adultery 

with  J.  S.,  and  so  the  jurors  present  the  said  Anne  B.  and  C.  D.  did 
together  commit  the  offence  of  adultery." 

Art.  829.   For  adultery  by  the  husband. 

"That  A.  B.   being  the  lawful  husband  of  C.  D.   did  on  the 

day  of  in  the  year  ,  at  the  parish  of  L.  commit  adul- 

tery with  one  E.  F.  and  did  during  the  time  he  so  committed  the  said 
offence,  keep  the  said  E.  F.  as  his  concubine  in  the  house  with  his  said 
wife  ;  [or  did,  by  ill-treating  his  said  wife,  force  her  to  leave  the  house 


CODE  OF  PROCEDURE.  613 

in  which  he  resided,  and  did,  after  her  departure,  keep  the  said  E.  F. 
as  his  concubine  in  it."] 

Art.  830.  For  violating  a  place  of  interment  for  the  purpose  of  steal- 
ing. 

"  Did  open  the  [grave,]  or  [vault,]  or  [tomb,]  in  which  the  dead 

body  of  one  A.  B.  had  been  interred,  with  the  intent  of  stealing  the 
coffin  or  vestments  with  which  the  said  A.  B.  had  been  interred,  [or 
some  article,  describing  it,  which  was  interred  with  the  said  body."] 

Art.  831.   For  removing  a  dead  body  for  the  purpose  of  exposure  or 
dissection. 

"Did,  without  legal  authority,  remove  from  the  [grave,]  or 

[vault,]  or  [tomb,]  in  which  it  had  been  interred,  the  dead  body  of  one 
A.  B.  for  the  purpose  of  selling,  or  exposing,  or  dissecting  the  same." 

Art.  832.  For  purchasing,  selling,  or  dissecting  a  dead  body  before 
interment. 

"  Did  purchase  the  dead  body  of  one  A.  B.  from  C.  D.,  or  from 

certain  persons  to  the  jurors  unknown  ;  [or  did  sell  the  dead  body  of 
one  A.  B.  to  C.  D.  or  to  a  certain  person  to  the  jurors  unknown,]  before 
the  said  body  was  interred." 

Att.  833.   For  dissecting  a  dead  body  before  interment. 

"  Did,  without  being  authorized  in  any  manner  provided  by  law, 

dissect  the  dead  body  of  one  C.  D.  which  had  not  been  interred." 


CHAPTER  XVI. 


Of  the  forms  of  indictments  for  offences  which  affect  persons  in  the 
exercise  of  their  religion. 

Art.  834.  For  restraining  the  free  exercise  of  religion  by  force  or 
threats.. 

"Did  by  FORCE  [or  THREATS,  stating  of  which  kind,]  prevent 

A.  B.  from  attending  divine  service  in  the  Protestant  Episcopal  Church, 
which  attendance  was  a  lawful  act  required  by  the  Protestant  Episcopal 
religion,  which  the  said  A.  B.  professed." 

Art.  835.  For  maliciously  preventing  the  free  exercise  of  religion. 

"  That  A.  B.  being  a  person  professing  the  [Roman  Catholic  re- 
ligion, and  being  confined  by  sickness  to  his  bed,  was  desirous  of  having 
the  sacraments  of  that  religion  administered  to  him  by  C.  D.  a  priest  of 
that  church,  and  had  a  note  written  to  him  requesting  his  attendance  for 
that  purpose,  but  that  one  J.  S.  maliciously  destroyed  the  said  note  be- 
fore it  was  delivered  to  the  said  C.  D.  with  intent  to  prevent  the  said 
A.  B.  from  doing  the  lawful  act  of  receiving  the  said  sacraments,  which 
was  required  by  the  religion  professed  by  the  said  A.  B."] 

Art.  836.  For  forcibly  obliging  another  to  perform  religious  rites. 

"  Did  by  force  [or  threats  of  injury  to  person  or  property,  sta- 
ting what  the  threats  were,]  oblige  or  endeavour  to  oblige  one  A.  B. 
[to  receive  the  communion  according  to  the  rites  and  ceremonies  of  the 
church."] 

Art.  837.  If  the  offender  be  a  judicial  or  executive  officer,  and  the 
act  be  done  under  colour  of  his  office  ;  or  if  he  be  a  priest,  or  minister, 


614  CODE  OF  PROCEDURE. 

or  preacher  of  any  religious  sect  or  congregaiion,  the  fact  must  be  sta- 
ted in  either  of  the  preceding  forms  in  this  chapter. 


CHAPTER  XVII. 


Of  the  forms  of  indictments  for  offences  affecting  reputation. 

Art.  838.  Charge  for  slander,  charging  a  crime. 

'<  Did  in  the  presence  of  sundry  persons  make  the  following  false 

and  defamatory  allegation  of  one  A.  B. — 'he  is  the  man  who  murder- 
ed C.  D.' — intending  thereby  to  convey  the  idea  that  the  said  A.  B. 
had  committed  the  crime  of  murder." 

Art.  839.  For  slander,  by  signs,  imputing  the  vice  of  habitual  drunk- 
enness. 

"That  J.  S.  being  in  company  with  A.  B.,  I.  K.,  and  others, 

on  the  day  of  in  the  year  ,  at  the  parish  of  L.,  [a  dis- 

course arose  of  and  concerning  persons  addicted  to  the  vice  of  habitual 
drunkenness,  whereupon  the  said  J.  S.  in  order  to  make  it  falsely  be 
believed  that  the  said  I.  K.  was  guilty  of  the  said  vice,  raised  his  right 
hand  to  his  mouth  as  if  in  the  act  of  bringing  a  glass  to  his  lips,  and  at 
the  same  time,  unperceived  by  the  said  I.  K.,  with  the  other  hand  point- 
ed him  out  to  the  observation  of  the  persons  there  present ;  and  the 
jurors  further  present,  that  the  said  A.  B. ,  one  of  the  said  company, 
asked  the  said  J.  S.  whether  the  said  I.  K.  was  a  drunkard,  to  which 
question  the  said  J.  S.  nodded  his  head  in  the  manner  usually  done  to 
give  an  assent,]  and  that  by  the  said  signs  the  said  J.  S.  did  falsely  im- 
pute to  the  said  I.  K.  the  vice  of  [habitual  drunkenness]  in  order  to  cause 
his  society  to  be  avoided  by  people  in  general." 

Art.  840.  For  a  libel,  by  painting,  imputing  a  crime. 

"  Did  make  and  publish  a  certain  engraved  and  printed  picture, 

by  and  in  which  a  figure,  intended  to  represent  one  I.  K.,  was  repre- 
sented as  [picking  the  pocket  of  another  of  a  purse,  thereby  intending 
to  convey  the  idea  and  make  it  be  believed  that  the  said  I.  K.  had  com- 
mitted the  crime  of  stealing  from  the  person],  which  picture  or  engrav- 
ing is  annexed  to  this  indictment." 

Art.  841.  To  every  indictment  for  libel  by  a  PICTURE,  the  same 
shall  be  annexed  to  the  indictment,  and  shown  to  the  party  accused 
before  his  arraignment,  in  the  manner  and  for  the  purpose  set  forth  in 
the  chapter  of  this  Code  respecting  indictments,  unless  such  picture  was 
painted  on  a  building,  or  on  some  article  too  bulky  to  be  brought  into 
court,  or  has  been  destroyed  by  some  other  means  than  the  act  of  the 
prosecutor,  or  by  his  procurement. 

Art.  842.   For  a  libel  charging  moral  guilt. 

"  Did  make  and  publish  [or  circulate,  as  the  case  may  be],  a 

certain  writing  of  and  concerning  one  I.  K.  in  the  words  following, 
['  of  the  character  of  this  Mr  K.  you  may  judge  from  this  circumstance, 
that  he  was  treasurer  of  a  charitable  society  in  New  Orleans  last  year, 
and  that  a  Flemish  account  was  given  of  the  funds  ;'  meaning  thereby 
that  the  said  I.  K.  had  appropriated  to  his  own  use  the  funds  of  some 
charitable  society  that  were  entrusted  to  him  as  treasurer  thereof."] 


CODE  OF  PROCEDURE.  615 

Art.  843.  For  a  libel  imputing  a  mental  defect  that  would  cause  the 
society  of  the  party  to  be  avoided. 

t{  Did  make,  publish,  and  circulate  a  certain  writing  concerning 

one  I.  K.,  printed  in  the  public  paper  [called  the  Daily  Gazette,]  in 
the  words  following,  to  wit  :  ['  To  Mr  I.  K. — I  should  be  surprised  at 
your  conduct  if  I  did  not  know  the  unhappy  state  of  your  mind  ;  that 
no  intimacy  can  render  any  man  safe  in  your  society  ;  that  you  abuse 
and  defame,  according  to  your  caprice,  every  man  who  has  the  misfor- 
tune to  associate  with  you,  without  provocation  and  without  mercy.'  "] 

Art.  844.  Where  the  charge  is  direct,  as  in  the  last  form,  there  is  no 
need  of  any  explanatory  allegation  ;  where  the  words,  importing  the 
charge,  are  not  perfectly  clear,  or  their  application  is  not  apparent,  the 
meaning  must  be  alleged.  The  Code  of  Evidence  gives  rules  as  to  the 
cases  and  manner  in  which  those  allegations  are  to  be  proved. 

Art.  845.  Injury  to  reputation  by  exhibiting  an  effigy. 

"  Did,  with  the  intent  to  bring  I.  K.  into  contempt,  and  to  ex- 
cite ridicule  and  indignation  against  him,  exhibit  [or  make  with  intent 
that  it  should  be  exhibited]  an  effigy  or  figure  intended  to  represent  the 
said  I.  K." 

Art.  846.  If  more  than  twelve  persons  are  collected  to  witness  the 
exhibition  and  refuse  to  disperse,  they  may  be  indicted  as  an  unlawful 
assembly,  by  adding  to  the  above  form^  "And  that  the  said  J.  S.  [the 
person  above  indicted]  and  A.  B.,  C.  D.,  and  others  to  the  jurors  un- 
known, were  unlawfully  assembled  to  aid  each  other  in  making  the 
said  unlawful  exhibition.  And  in  case  they  refuse  to  .disperse,  the 
indictment  may  be  for  a  riot,  by  adding  to  the  charge  of  an  unlawful 
assembly  the  following  :  "  And  the  jurors  further  present,  that  the 
persons  so  unlawfully  assembled,  then  and  there  committed  a  riot,  by 
remaining  together  for  the  purposes  aforesaid  half  an  hour  and  more 
after  they  had  been  warned  by  a  magistrate  to  disperse  in  the  form 
required  by  law." 

Art.  847.  For  injury  to  reputation  by  dramatic  performances. 

"  Did,  with  intent  to  bring  one  I.  K.  into  contempt,  and  to  ex- 
cite ridicule  and  indignation  against  him,  perform  [or  cause  to  be  per- 
formed] a  certain  dramatic  work,  called  '  the  Tartuffe,'  in  which  the 
said  I.  K.  was  represented  or  personated  by  an  imitation  of  his  person, 
dress,  manners  and  gestures,  in  such  a  manner  as  made  it  apparent  to 
those  who  were  present,  and  who  knew  the  said  I.  K.,  that  he  was  the 
person  intended  by  such  personification." 

Art.  848.   For  combining  to  make  a  false  accusation  of  a  crime. 

"That  J.  S.  and  C.  D.  on  the  day  of  in  the  year 

,  at  the  parish  of  L.,,  did  combine  falsely  to  accuse  one  I.  K. 
of  the  crime  of  stealing;  and  in  pursuance  of  such  combination,  they 
the  said  J.  S.  and  C.  D.  [or  one  of  them,  stating  which,]  did  declare 
[state  whether  verbally  or  in  writing]  that  [the  said  I.  K.  had  stolen 
ten  sheep  from  him  the  said  J.  S."] 

If  the  combination  should  be  to  extort  any  pecuniary  advantage,  then 
insert,  "  Did,  for  the  purpose  of  extorting  some  pecuniary  advantage 
from  one  I.  K.,  combine  falsely  to  accuse  [or  to  threaten  to  accuse]  the 
said  I.  K.  of  the  crime  of  stealing,  and  in  pursuance  of  such  combina- 
tion, did,  for  the  purpose  aforesaid,"  &c.  as  above. 

Art.  849.  For  false  accusation  with  intent  to  extort. 

"Did,  with  intent  to  extort  money  or  procure  some  other  profit, 


616  CODE  OF  PROCEDURE. 

[threaten  one  A.  B.  that  he  the  said  J.  S.  would  accuse  him  the  said 
A.  B.  of  the  crime  of  rape  ;]  or  [did  falsely  accuse  one  A.  B.  of  having 
committed  the  crime  of  rape  ;]  or  [did  falsely  accuse  or  threaten  to  ac- 
cuse, as  charged  in  the  preceding  form,]  one  A.  B.  of  [having  sold  the 
favours  of  his  wife,  or  other  act  that  would  bring  him  into  contempt."] 

Art.  850.   For  fabricating  defamatory  papers. 

"Did,  without  any  lawful  authority  and  with  intent  to  injure 

the  reputation  of  one  I.  K.,  publish  or  circulate,  or  make  with  intent 
that  it  should  be  circulated,  a  false  writing,  purporting  to  be  a  letter 
written  by  the  said  J.  S.  in  the  words  following,  to  wit,  [insert  copy."] 


CHAPTER  XVIII. 


Of  the  forms  of  indictments  for  offences  affecting  the  person  of 

individuals. 


SECTION  I. 
Simple  assaults  and  batteries. 

Art  851.  Form  of  indictment  for  a  simple  assault. 

"That  J.  S.  on  the  day  of  in  the  year  .  , 

at  the  parish  of  L.,  upon  one  A.  B.  did  make  an  assault  by  striking  at 
the  said  A.  B.  with  a  cane,  [or  in  any  other  manner  that  by  law  will 
constitute  an  assault,  describing  it."] 

Art.  852.   For  a  simple  assault  and  battery. 

"  Did,  with  intent  to  injure,  make  an  illegal  assault  on  one  A. 

B.  and  struck  him  with  his  fist  in  the  face,  [or  with  a  cane  on  the  head,] 
[or  by  throwing  water  in  his  face,]  [or  by  pushing  another  person 
against  him,]  [or  by  firing  a  pistol  and  wounding  him  with  the  ball,  or 
in  any  of  the  various  ways  in  which  this  offence  may  be  committed, 
describing  the  act  without  fiction  or  exaggeration."] 


SECTION  II. 
Assault  and  battery  in  relation  to  the  person. 

Art.  853.  For  an  assault  and  battery  against  a  public  officer  in  the 
execution  of  his  office. 

"Did,  with  intent  to  injure,  make  an  illegal  assault  on  one  A. 

B.  [one  of  the  constables  of  the  city  of  New  Orleans,  at  the  time  of  the 
said  assault  being  in  the  legal  execution  of  his  office,  to  wit,  destraining 
certain  goods  of  the  said  J.  S.  by  virtue  of  a  warrant  legally  issued  by 
G.  P.  one  of  the  judges  of  the  city  court,]  he  the  said  J.  S.  well  know- 
ing the  office  of  the  said  A.  B.  and  that  he  was  in  the  legal  exercise  of 
them." 


CODE  OF  PROCEDURE.  617 

Art.  854.  For  assault  and  battery  committed  by  an  officer  under  pre- 
tence of  executing  his  office. 

"That  J.  S.  on  the  day  of  in  the  year  ,  in  the 

parish  of  L.,  he  being  then  and  there  [sheriff  of  the  said  parish,]  under 
pretence  of  executing  his  office  by  [serving  a  summons  on  one  A.  B. 
to  appear  as  a  witness  in  the  parish  court  of  the  parish,  did  make  an 
illegal  assault  on  the  said  A.  B.,  and  with  intent  to  injure,  did  seize 
him  by  the  collar  and  drag  him  in  the  street  towards  the  said  court."] 

If,  in  a  case  where  the  officer  had  authority  to  use  force  but  exceeded 
the  necessary  degree,  say,  "then  being  sheriff  of  the  said  parish,  by 
virtue  of  his  office  arrested  one  A.  B.  on  a  warrant,  [describing  it,] 
and  although  no  resistance  was  offered  to  the  said  arrest,  yet  the  said 
J.  S.,  under  pretence  of  executing  the  said  warrant,  illegally  assaulted 
and  beat  the  said  A.  B.  by,"  [describing  the  assault] 

Art.  855.  For  assault  against  an  ascendant — against  a  woman — a  tutor. 

"Did,  with  intent  to  injure,  make  an  illegal  assault  on  A.  B. 

the  [father,]  [mother,]  [grandfather,]  [grandmother,]  [tutor,]  of  him 
the  said  J.  S."  &c. 

In  the  indictment  for  assault  and  battery  by  a  man  against  a  woman, 
no  particular  averment  is  necessarj',  the  names,  and  the  relative  per- 
sonal pronouns  used  in  the  indictment  are  a  sufficient  indication  of 
the  sex. 


SECTION  III. 
Assault  and  battery  in  relation  to  the  place. 

Art.  856.   Assault  and  battery  in  a  court  of  justice. 

"Did  in  the  parish  court  of  the  parish  of  L.  make  an  assault." 

Art.  857.  Assault  and  battery  committed  in  the  house  of  another. 

"Did  go  to  the  house  of  one  I.  K.  with  the  intent  of  commit- 
ting an  assault  and  battery  on  one  A.  B.  then  residing  in  the  said 
house  as  [a  guest,]  and  did  then  and*  there,  in  pursuance  of  such  in- 
tent, illegally  and  with  design  to  injure,  make  an  assault  on  the  said 
A.  B."  &c. 

Art.  858.  Assault  and  battery  in  a  church  during  the  celebration  of 
public  worship. 

"  Did,  during  the  celebration  of  public  worship  in  the  [Catholic 

church,]  with  intent  to  injure,  make  an  illegal  assault  in  the  said  church 
upon  one  A.  B.  &c.  whereby  the  congregation  of  [Catholics]  was  dis- 
turbed in  the  performance  of  their  worship,  or  religious  rites  and  cere- 
monies." 


SECTION  IV. 

Assault  and  battery  in  relation  to  the  intent. 

Art.  859.  Assault  and  battery  with  intent  to  murder  or  ravish. 

«  Did,  with  intent  to  commit  the  crime  of  [murder]  or  [of  rape,] 

make  an  assault,"  &c. 
4  C 


618  CODE  OF  PROCEDURE. 

Art.  860.   With  intent  to  dismember* or  inflict  a  permanent  injury. 

"Did,  with  intent  to  dismember  one  I.  K.  by  cutting  off  his 

ears,  make  an  assault  on  him  the  said  I.  K.,  and  with  a  penknife  made 
several  cuts  in  his  head  and  cheeks." 

Art.  861.   If  the  intent  be  to  disfigure,  say  : 

"Did  make  an  illegal  assault  upon  one  A.  B.  with  intent  to 

disfigure  him  by  slitting  open  his  nostrils,  and  in  attempting  the  said 
injury  did  wound  the  said  A.  B.  in  several  parts  of  his  face." 

Art.  862.  If  the  intent  be  to  do  a  permanent  injury,  not  amounting 
to  dismembering  or  disfiguration,  say: 

"  Did  make  an  illegal  assault  upon  one  A.  B.  and  with  design 

to  inflict  a  permanent  injury  by  [laming  the  said  A.  B.  in  the  right  leg, 
did  attempt  to  cut  the  tendons  of  the  said  leg  with  a  knife."] 

Art.  863.  If  the  design  of  the  assault  and  battery,  or  the  assault 
alone,  be  to  comrn.it  any  other  crime  than  murder  or  rape,  such  intent 
must  be  specified  in  the  same  form  as  is  given  above  for  an  assault  with 
intent  to  commit  those  crimes. 

Art.  864.  For  assault  and  battery  with  intent  to  force  another  to 
commit  an  offence. 

"  Did  make  an  illegal  assault  on  one  A.  B.  with  intent  to  force 

him  to  commit  the  crime  of  theft  by  stealing  the  horses  of  a  certain  C. 
D.,  and  did  beat  and  wound  the  said  A.  B.  and  threaten  to  kill  him 
unless  he  would  consent  to  commit  the  said  crime." 

Art.  865.  For  an  assault  and  battery  on  a  woman,  attended  with 
immodest  words  or  actions. 

"  Did  make  an  illegal  assault  upon  one  Anne.B.,  and  did  ac- 
company the  said  assault  by  words  and  gestures  calculated  to  wound 
the  modest}7"  of  the  female  sex,  and  by  violently  laying  his  hands  on  the 
said  Anne:" 

Art.  866.  If,  in  the  case  stated  in  -the  last  form,  the  offender  was 
tutor  or  curator  and  the  person  injured  was  his  ward,  or  if  the  offender 
was  schoolmaster  and  the  person  injured  was  his  scholar,  those  circum- 
stances must  be  stated,  thus  : 

"That  J.  S.  on  the  day  of  in  the  year  ,  at 

the  parish  of  L.,  was  the  tutor  [or  curator]  of  Anne  B.,  a  minor  ;  [or 
was  the  schoolmaster  of  Anne  B.,  employed  to  teach  her  reading  and 
writing,]  [or  music,]  [or  any  other  art  or  any  science,]  and  that  on  the 
day  and  year  and  at  the  place  aforesaid,  the  said  J.  S.  made  an  assault 
upon  the  said  Anne,"  &c.  as  in  the  last  form. 

Art.  867.  For  an  assault  or  battery  with  intent  to  dishonour  or  pro- 
voke a  duel. 

"Did  make  an  illegal  assault  -and  battery  upon  one  A.  B.  by 

pulling  his  nose  with  intent  to  dishonour  the  said  A.  B.  [or  to  force  the 
said  A.  B.  to  accept  or  to  give  a  challenge  to  fight  a  duel."] 


SECTION  V. 

Forms  in  assaults  aggravated  by  the  degree  or  the  manner. 

Art.  868.   For. assault  by  design  and  with  a  deadly  weapon. 

"  Did,  in  consequence  of  a  premeditated  design  to  [wound  and 


CODE  OF  PROCEDURE.  619 

otherwise  ill-treat  one  A.  B.]  [or  to  disfigure,  or  to  dismember,  or  to 
inflict  a  permanent  injury,  stating  particularly  the  design,]  make  an 
assault  upon  him  the  said  A.  B.  with  a  deadly  weapon,  to  wit,  [with  a 
sword,]  and  did  wound  the  said  A.  B.  in  the  arm." 

Art.  869.  For  assault  and  battery  by  premeditated  design,  but  not 
with  a  deadly  weapon. 

"Did,  in  consequence  of  premeditated  design  to,  beat  and  ill- 
treat  one  A.  B.  [or  to  disfigure,  or  dishonour,  stating  the  intent  par- 
ticularly,] make  an  illegal  assault  upon  the  said  A.  B.  [and  with  a  cane 
struck  and  bruised  him  in  his  face  and  head."] 

Art.  870.  If  the  offences,  described  in  the  preceding  forms  of  this 
section,  be  committed  by  lying-in-wait,  that  circumstance  must  be 
charged,  thus  : 

"  Did,  in  consequence  of  a  premeditated  design  [to  beat  and  ill- 
treat,  or  to  disfigure  or  dismember,  or  to  dishonour,  &c.]  lie-in-wait  for 
the  said  A.  B.  and  make  an  illegal  assault,"  &c. 

Art.  871.  Assault  and  battery,  attended  by  disfiguration,  dismember- 
ing, or  other  permanent  injury,  when  no  design  to  inflict  that  degree 
of  injury  is  proved. 

"  Did  make  an  illegal  assault  upon  one  A.  B.  and  with  design  to 

injure  him  did  [strike,]  or  [thrust,]  or  [cut  the  said  A.  B.  with  a 
sword,  state  the  nature  of  the  injury  and  the  weapon,]  so  that  the  said 
A.  B.  in  consequence  of  such  battery  was  dismembered  by  the  loss  of 
[or  losing  the  use  of]  an  [eye,  a  leg,  or  other  members,  stating  which ;] 
or  was  [disfigured  by  a  large  wound,  leaving  a  scar  under  the  right  eye, 
which  drew  it  from  its  natural  position,  or  otherwise,  stating  how  ;]  or 
[did  receive  such  injury  in  his  right  leg  as  makes  it  certain  that  he 
will,  for  the  rest  of  his  life,  be  lame,]  or  such  bruises  in  his  chest  as 
renders  it  probable  that  he  will  labour  for  the  rest  of  his  life  under  the 
infirmity  of  weakness  in  the  lungs,  or  other  permanent  bodily  hurt, 
describing  it."] 


SECTION  VI. 
Forms  of  indictment  for  false  imprisonment. 

Art.  872.  Form  of  indictment  for  false  imprisonment  by  assault. 

"  Did  illegally  and   intentionally  detain  one    A.    B.    in  [the 

high-way,  or  other  place,  describing  it],  by  making  an  assault  on  him 
with  a  drawn  sword  opposed  to  his  breast,  by  which  the  said  A.  B. 
was  illegally  prevented  from  moving  from  the  place  where  he  then 
was,  by  the  just  fear  of  death  or  great  bodily  injury,  for  the  space  of 
one  hour." 

Art.  873.   By  actual  violence. 

"  Did  illegally  and  intentionally  detain  one  A.  B.  in  [describe 

the  place]  by  [violently  seizing  him  by  the  collar  with  his  hands,  or 
by  binding  him  with  a  rope,]  [describing  the  manner  of  the  deten- 
tion], and  kept  the  said  A.  B.,  so  detained  as  aforesaid,  for  the  space 
of  [two  hours."] 

Art.  874.  By  some  material  impediment  to  the  power  of  locomotion. 

"  Did  illegally  and  intentionally  detain  and  imprison  one  A. 

B.  in  [a  [chamber]  or  cellar,  or  other  place  in  the  said  parish],  by 


620  CODE  OF  PROCEDURE. 

locking  or  barring  the  doors  and  windows  of  the  said  [chamber]  when 
he  the  said  A.  B.  was  therein,  in  such  a  manner  as  to  prevent  him 
from  leaving  the  said  place,  and  kept  him  so  imprisoned  for  the  space 
of  [ten  days."] 

Art.  875.  By  threats. 

"Did  illegally  and  intentionally  detain  one  A.  B.  in  [describe 

the  place]  by  threatening,  that  if  he  should  leave  the  said  place 
[naming  it]  he  would  [describe  the  threat],  and  by  means  of  such 
threats  did  detain  the  said  A.  B.  in  the  said  for  the  space 

of  [six  hours/']  &c. 

Art.  876.  False  .imprisonment  may  be  charged  to  have  been  in- 
flicted when  such  is  the  case,  by  a  combination  of  all  the  means  stated 
in  the  preceding  forms  ;  and  may  also  be  joined  in  the  indictment 
with  all  the  different  kinds  and  degrees  of  assault  and  battery,  stating 
therein  the  forms  above  given. 


SECTION  VII. 

False  imprisonment  aggravated  by  the  purpose  or  the  degree. 

Art.  877.  Indictment  for  false  imprisonment  and  conveyance  out 
of  the  state. 

"Did  illegally  and  intentionally  detain  one  A.  B.  [by  making 

an  assault  on  him  with  a  drawn  sword,  or  other  weapon,  or  by  seizing 
him  with  his  hands,  or  any  of  the  other  modes  above  described]  and 
did  forcibly  convey  the  said  A.  B.,  so  imprisoned,  out  of  this  state  to 
[the  city  of  Natchez],  or  [to  some  place  to  the  jurors  unknown."] 

Art.  878.  If  the  charge  be  an  intent  to  convey  out  of  the  state, 
after  stating  the  imprisonments  as  above,  add  : 

"  Did  keep  the  said  A.  B.  in  form  aforesaid  during  the  space 

of  [two  days]  with  intent  to  convey  him  by  force  out  of  this  state, 
[to  the  Havanna],  or  to  some  place  without  this  state  to  the  jurors 
unknown." 

Art.  879.  Form  of  charge  in  an  indictment  for  detaining  a  free  per- 
son as  a  slave. 

"  Did,  &c.  [charge  the  imprisonment  according  to  the  fact  in 

either  of  the  above  forms,  and  add],  and  did  detain  the  said  A.  B.  in 
form  aforesaid  during  the  space  of  [two  days]  for  the  purpose  of  keep- 
ing or  disposing  of  him  as  a  slave,  he  the  said  J.  S.  knowing  the  said 
A.  B.  to  be  free." 

Art.  880.  For  false  imprisonment  used  as  the  means  of  forcing 
another  to  commit  an  offence. 

"  Did  illegally  and   intentionally  detain  one  A.    B.    [for  the 

space  of  ]  by  [insert  the  means]  with  the  intent  to  force  the 

said  A.  B.  to  [aid  the  said  J.  S.  in  forging  bills  of  the  bank  of  B.  or 
any  other  offence,  describing  it."] 

Art.  881.  For  false  imprisonment  with  intent  to  commit  an  offence. 
— [After  the  charge  of  the  false  imprisonment,  as  in  the  above  form, 
say,  "  with  the  intent  to  [rob  the  said  A .  B.,  or  to  murder,  or  any 
other  crime  describing  it."] 

Art.  882.  If  the  intent  of  the  imprisonment  is  to  force  a  woman  to 
do  an  immodest  act,  after  the  charge  of  the  imprisonment,  as  above, 


CODE  OF  PROCEDURE.  621 

add,  "  with  intent  to  force  the  said  A.  B.  to  do  some  act,  or  submit 
to  some  treatment,  injurious  to  the  modesty  of  her  sex." 

Art.  883.  In  the  case  provided  for  by  the  last  form,  if  the  person 
accused  be  the  tutor,  curator,  or  schoolmaster  of  the  party  offended, 
it  must  be  specially  so  stated  in  the  form,  prescribed  in  the  fourth 
section  of  this  chapter. 

Art.  884.  Form  of  indictment  when  the  imprisonment  was  legal, 
but  used  with  the  intent  set  forth  in  the  two  last  forms. 

"That  Anne  B.  on  the  day  of  in  the  year 

,  in  the  parish  of  having  been  guilty  of  a  [mis- 

demeanor, or  crime,  stating  it],  or  [having  threatened  injury  to  any 
one,  or  done  any  other  act  (stating  it)  which  would  justify  a  complaint 
and  accusation,]  one  J.  S.  procured  a  warrant  to  be  issued  against  the 
said  Anne  B.  by  G.  P.  one  of  the  justices,  &c.  for  the  said  offence, 
and  caused  her  to  be  arrested  and  imprisoned  thereon,  with  intent 
and  for  the  purpose  of,"  &c.  as  in  the  last  form. 


SECTION  VIII. 
Forms  of  indictment  in  cases  of  abduction. 

Art.  885.   Indictment  for  false  imprisonment  and  abduction. 

"  Did,  [state  the  false  imprisonment  according  to  the  forms 

in  the  preceding  section,  and  add,]  with  the  intent  to  force  the  said 
A.  B.,  by  means  of  such  detention,  to  consent  to  a  marriage  with  the 
said  J.  S.  or  with  a  certain  I.  K."] 

Art.  886.  Abduction  of  a  female  under  fourteen  years. 

"  Did  take  and  carry  away  from  the  care,  superintendence, 

and  custody  of  her  [father,]  [mother,]  [tutor,]  [or  other  person  hav- 
ing legal  charge  of  the  minor,  stating  his  quality  with  respect  to  her,] 
one  Anne  B.  a  female  minor,  under  the  age  of  fourteen  years,  without 
the  consent  of  the  said  [father,  &c.  or  other  person  having  legal  charge 
of  the  said  minor],  and  [without  the  consent  of  the  said  Anne  B.,  if 
such  be  the  case],  with  the  intent  of  marrying  the  said  Anne  B.,  [or 
keeping  her  as  a  concubine],  [or  inducing  her  to  prostitute  her  per- 
son to  others."] 


SECTION  IX. 

Forms  of  indictment  io  cases  of  rape. 

Art.  887.   Rape  by  force. 

"Did  make  an  assault  upon  one  Anne  B.,  and  her,  against  her 

consent,  did  by  force  and  violence  carnally  know." 

Art.  888.  Rape  by  menace. 

"  Did  ravish  one  Anne  B.,  and  against  her  will  did  carnally 

know  her  by  threatening  her  with  instant  death,  [or  with  putting  out 
her  eyes,  or  other  great  bodily  harm,  stating  it."] 

Art.  889.   Rape  by  fraud. 

"  Did  approach  one  Anne  B.  she  then  being  asleep,  [or  the  room 


622  CODE  OF  PROCEDURE. 

in  which  she  lay,  she  being  in  bed,  being  dark,  or  state  such  other 
circumstances  as  favoured  the  fraud,]  and  causing  the  said  Anne  B. 
to  believe  that  he  the  said  J.  S.  was  her  husband,  the  said  Anne  B. 
thus  fraudulently  did  ravish  and  carnally  know." 

Or, "Did  designedly  administer  to  one  Anne  B.  a  certain  drug 

or  substance,  to  the  jurors  unknown,  [or  called  ],  by  which  an 

unnatural  sexual  desire  was  produced  in  the  said  Anne  B.  [or  by  which 
she  was  thrown  into  such  stupor  or  weakness  as  weakened  or  prevented 
resistance],  and  while  she  was  under  the  influence  of  the  said  drug  or 
substance,  her  the  said  Anne  did  ravish  and  carnally  know. " 


SECTION  X. 

Forms  of  indictment  for  procuring  a  miscarriage  or  abortion. 

Art.  890.  For  procuring  without  the  consent  of  the  woman,  by 
violence. 

"  That  on  the  day  of  in  the  year          ,  at  the  parish 

of  ,  one  Anne  B.  being  pregnant,  J.  S.  of  the  same  place,  with 

intent  to  procure  the  said  Anne  to  miscarry  of  the  child  with  which 
she  was  then  pregnant,  without  her  consent  or  knowledge,  did  cause 
her  to  swallow  a  certain  drug  or  substance  called  ,  or  [did  apply 

to  her  body  a  certain  substance  called  ,]  or  [did  by  violence  and 

against  her  consent  forcibly  compress  the  body  of  the  said  Anne],  and 
by  those  means  caused  the  said  Anne  to  miscarry  of  the  child  of  which 
she  was  then  pregnant." 

Art.  891.  If  done  with  the  consent  of  the  woman,  the  above  form 
may  be  used,  substituting  only  the  words  "with  her  consent,"  for  the 
words  «  without  her  consent  or  knowledge." 

Art.  892.  For  furnishing  the  means,  knowing  the  purpose. 

The  same  form  as  above.  Instead  of  charging  that  he  "did  cause 
her  to  swallow,"  &c.  say,  "  did  furnish  to  her  [to  be  taken  with  her 
consent],  [or  to  J.  S.  to  be  administered  to  the  said  Anne  B.  without 
her  consent  or  knowledge,]  a  certain  drug  or  substance  called 
which  was  taken  [or  applied]  by  [or  to]  the  said  Anne  B.,  and  caused 
her  to  miscarry  of  the  child  of  which  she  was  then  pregnant,  he  the 
said  J.  S.  knowing  the  purpose  to  which  the  said  drug  or  substance  was 
intended  to  be  applied." 

Art.  893.  For  furnishing  the  means  when  they  fail  in  their  effect. 

As  in  the  last  preceding  form  to  the  words  "which  was  taken  [or 
applied]  by  [or  to]  the  said  Anne  B.,"  after  which  add,  "for  the  pur- 
pose of  causing  her  to  miscarry  of  the  child  with  which  she  was  then 
pregnant,  but  which  failed  in  producing  such  miscarriage,  he  the  said 
J.  S.  well  knowing,  at  the  time  of  furnishing  the  said  drug  or  substance, 
the  purpose  to  which  it  was  intended  to  be  applied." 

Art.  894.  If  the  offender  be  a  physician  or  surgeon,  or  midwife,  or 
practise  as  such,  that  fact  must  be  charged. 


CODE  OF  PROCEDURE.  623 


SECTION  XI. 

Form  of  indictment  for  maliciously  giving  a  potion  injurious  to  health. 

Art.  895.  "Did  maliciously  cause  one  I.  K.  to  swallow,  or  in- 
hale, without  his  knowledge,  a  drug  called  ,  or  some  drug  or 
substance  to  the  jurors  unknown,  which  caused  a  violent  change  in  the 
usual  functions  of  his  body,  [or  injured  his  health."] 


SECTION  XII. 

Forms  of  charges  in  indictments  for  homicide. 

Art.  896.  Indictment  for  negligent  homicide  in  the  first  grade. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  in  the 

parish  of  L.,  being  about  to  repair  the  barrel  of  a  musket,  believing  the 
same  not  to  be  loaded,  but  without  examining  whether  it  was  loaded 
or  not,  negligently  put  the  breach  of  the  said  musket-barrel  into  a 
heated  furnace;  and  the  jurors  present,  that  the  said  musket-barrel  was, 
unknown  to  the  said  J.  S.,  loaded  with  powder  and  ball, and  that  owing 
to  the  heat  of  the  furnace  the  powder  exploded  and  drove  the  ball 
through  the  heart  of  one  I.  K.  who  was  accidentally  passing,  and  in- 
flicted a  mortal  wound,  of  which  wound,  made  by  the  said  ball,  the  said 
I.  K.  instantly  died:  therefore  the  said  jurors  present,  that  the  said  J.  S. 
is  guilty  of  negligent  homicide  in  the  first  grade." 

Art.  897.   Negligent  homicide  in  the  second  grade. 

"That  J.  S.  on  the  day  of  in  the  year  ,  at  the 

parish  of  L.,  [caused  one  of  his  slaves  to  mount  on  the  back  of  anunbroke 
colt,  for  the  purpose  of  breaking  him,  in  the  public  street  or  high-way, 
where,  at  the  time,  a  number  of  persons  were  passing  on  their  lawful 
business,  to  the  evident  danger  of  the  lives  of  such  persons,  without  taking 
any  precaution  to  avoid  the  danger  to  which  the  said  persons  were  ex- 
posed; and  the  jurors  present,  that  the  rider  of  the  said  colt  being  unable 
to  govern  it,  the  said  colt  ran  violently  against  one  I.  K.  then  passing  in 
the  said  [high-way]  or  [street],  and  inflicted  on  him  the  said  I.  K.  a 
mortal  bruise  on  the  breast,  of  which  the  said  I.  K.  afterwards,  that  is 
to  say,  on  the  day  of  in  the  same  year,  in  the  parish  afore- 

said, died:  therefore  the  said  jurors  present,  that  the  said  J.  S.  is  guilty 
of  negligent  homicide  in  the  second  grade. 

Art.  898.  For  negligent  homicide,  in  the  first  grade,  in  the  attempt 
to  do  an  unlawful  act. 

"  That  J.  S.  on  the  [insert  date  and  place],  intending  unlawfully 

[and  maliciously  to  kill  an  ox  belonging  to  one  I.  K.  in  an  unfrequented 
field,  fired  with  a  rifle  loaded  with  ball  at  the  said  ox,  without  having 
previously  examined  whether  any  person  was  concealed  by  a  bush 
which  grew  in  the  said  field;  and  the  jurors  present,  that  the  said  I.  K. 
was  concealed  from  the  view  of  the  said  J.  S.  by  the  said  bush,  and 
that  the  ball  discharged  from  the  said  rifle,  as  aforesaid,  after  killing 


624  CODE  OF  PROCEDURE. 

the  said  ox,  entered  the  right  side  of  the  said  1.  K.  and  inflicted  a 
mortal  wound]  of  which  the  said  I.  K.  afterwards,  on  the  same  day 
and  year,  at  the  place  aforesaid,  died  :  wherefore  the  said  jurors  pre- 
sent, that  the  said  I.  K.  has  committed  the  first  grade  of  negligent 
homicide  in  the  commission  of  an  unlawful  act.*' 

Art.  899.  Negligent  homicide,  in  the  second  grade,  in  the  commis- 
sion of  an  unlawful  act. 

"  That  J.  S.  on  the  [insert  date  and  place]  [intending  and  at- 
tempting to  kill  and  steal  a  turkey  belonging  to  I.  K.  then  feeding  near 
the  door  of  the  dwelling-house  of  the  said  I.  K.  negligently  fired  a 
fowling-piece,  loaded  with  powder  and  small  shot,  at  the  said  turkey, 
but  in  the  direction  of  the  window  of  the  said  house,  and  that  some  of 
the  shot,  so  fired  from  the  said  fowling-piece,  passed  through  the  win- 
dow and  inflicted  a  mortal  wound  on  the  right  temple  of  A.  K.  a 
female  child  of  the  said  I.  K.,  aged  five  years  or  thereabouts,  of  which 
wound  the  said  A.  K.  afterwards,  on  the  same  day  and  year  and  at  the 
place  aforesaid,  died] :  therefore  the  jurors  present,  that  the  said  J.  S. 
hath  committed  the  second  grade  of  negligent  homicide,  in  the  [attempt] 
to  do  an  unlawful  act." 

Art.  900.  In  all  indictments  for  homicide,  in  doing  or  attempting  to 
do  an  unlawful  act,  the  circumstances  of  such  unlawful  act  must  be  de- 
tailed with  as  much  precision  as  if  the  indictment  were  for  doing  such 
act;  and  also,  it  must  be  stated  whether  the  unlawful  act  were  accom- 
plished, or  only  attempted,  because  it  is  from  a  knowledge  of  these 
circumstances  only  that  the  court  can  determine  the  degree  of  the 
ofience  and  the  manner  of  punishment." 

Art.  901.  Indictment  for  manslaughter. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  at  the 

parish  of  L.  under  the  immediate  influence  of  sudden  passion,  arising 
from  an  adequate  cause,  did  [strike  one  I.  K.  on  the  head  with  a  bar 
of  iron,  and  did  thereby  inflict  a  mortal  wound,  of  which  the  said  I.  K. 
afterwards,  on  the  same  day  and  year,  and  at  the  parish  aforesaid, 
died]  :  wherefore  the  said  jurors  present,  that  the  said  J.  S.  the  said 
I.  K.  then  and  there  unlawfully  did  kill  and  slay." 

Art.  902.   Charge  in  an  indictment  for  murder. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  in  the 

parish  of  L.  with  a  premeditated  design  to  kill  one  I.  K.  made  an  as- 
sault upon  the  said  I.  K.  and  with  a  dirk  inflicted  a  mortal  wound  on 
the  left  breast  of  him  the  said  I.  K.,  of  which  wound  he  the  said  I.  K. 
afterwards,  on  the  day  of  in  the  year  aforesaid,  at  the  place 

last  aforesaid,  died:  wherefore  the  said  jurors  present,  that  the  said 
J.  S.  the  said  I.  K.,  in  manner  aforesaid,  with  a  premeditated  design, 
did  kill  and  murder." 

Art.  903.  Indictment  for  infanticide. 

"That  J.  S.  on  the  [insert  date  and  place],  in  order  to  conceal 

the  birth  of  a  male  child,  born  on  the  day  of  in  the  year 

of  [insert  the  name  of  the  mother],  or  [if  the  person  accused  is 
the  mother,  say,  of  the  said  J.  S.]  did,  with  a  premeditated  design  to 
kill,  expose  the  said  child  to  the  inclemency  of  the  weather  in  an  un- 
frequented field  in  the  said  parish,  on  the  night  of  the  said  day  of 
and  left  the  said  child  so  exposed  during  the  whole  of  the  said 
night,  of  which  exposure  the  said  child,  on  the  same  night,  died:  where- 


CODE  OF  PROCEDURE.  625 

fore  the  said  jurors  present,  that  the  said  J.  S.  the  said  male  child  did, 
in  manner  aforesaid,  with  premeditated  design,  kill  and  murder." 

Art.  904.  For  assassination  to  conceal  a  crime. 

"  That  J.  S.  [insert  date  and  place]  having  committed  the  crime 

of  robbery  by  violently  and  fraudulently  taking  from  the  person  of 
A.  B.  against  his  will,  one  gold  watch  and  fifty  Mexican  dollars,  in 
order  to  conceal  the  said  crime,  with  premeditated  design  to  kill,  did 
make  an  assault  on  the  said  A.  B.  and  by  discharging  a  pistol,  loaded  with 
powder  and  ball  and  buckshot,  against  the  head  of  him  the  said  A.  B., 
with  the  said  ball  and  buckshot,  inflicted  a  mortal  wound  under  the 
right  eye  of  the  said  A.  B.,  of  which  wound  the  said  A.  B.  afterwards, 
on  the  day  of  died  :  therefore  the  jurors  say,  that  the 

said  J.  S.  the  said  A.  B.  did,  in  manner  aforesaid,  with  a  premeditated 
design,  kill,  murder,  and  assassinate." 

Art.  905.   Assassination  in  the  commission  of  a  crime. 

— -. — "That  J.  S.  on  the  day  of  in  the  year  ,  at  the 

parish  of  L. ,  for  the  purpose  of  committing  the  crime  of  robbery  of  one 
I.  K.  by  violently  and  fraudulently  taking  from  the  person  of  the  said 
I.  K.,  against  his  will,  one  gold  watch,  did,  with  premeditated  design 
to  kill,  make  an  assault  upon  one  A.  B.  who  then  and  there  endea- 
voured to  prevent  the  said  robbery,  and  with  a  sword  inflicted  a  mortal 
wound  on  the  right  side  of  the  said  A.  B."  &c.  [as  in  the  preceding 
form.] 

Art.  906.  Assassination  for  the  purpose  of  obtaining  an  inheritance, 
and  by  hiring  to  murder. 

"That  J.  S.  being  the  next  of  kin  to  one  I.  K.  for  the  purpose 

of  obtaining  the  inheritance  of  the  said  1.  K.  on  the  day  of 

in  the  year  ,did  hire  P.  L.  and  N.  0.  for  a  reward  promised  to 

them  by  the  said  J.  S.  to  kill  the  said  I.  K.  and  that  the  said  P.  L.  and 
N.  0.  agreed  to  murder  and  assassinate  the  said  I.  K.  for  the  said  hire, 
and  in  pursuance  of  such  agreement  on  the  night  of  the  day  last  afore- 
said, entered  the  bed-room  of  the  said  I.  K.  and  did  make  an  assault 
upon  him  the  said  I.  K.  there  lying  in  his  bed,  and  the  said  I.  K.  with  a 
pillow  pressed  by  them  on  his  face  did  suffocate,  of  which  suffocation 
the  said  I.  K.  then  and  there  died  :  wherefore  the  said  jurors  present, 
that  the  said  J.  S.  and  the  said  P.  L.  and  the  said  N.  0.  the  said  I.  K. 
with  a  premeditated  design  then  and  there,  in  manner  aforesaid,  did 
kill,  murder,  and  assassinate." 

Art.  907.  Assassination  by  the  means  used  to  murder;  lying-in-wait, 
arson,  poison. 

• "That  J.  S.  on  [set  forth  the  date  and  place]  with  a  premedi- 
tated design  to  kill  one  1.  K.  did  lie  in  wait  for  him  in  a  wood  through 
which  the  J.  S.  expected  that  the  said  I.  K.  would  pass,  and  did  then 
and  there  make  and  assault  on  the  said,"&c.  [as  in  the  preceding  form.] 

Art.  908.  By  arson. 

"With  a  premeditated  design  to  kill  one  I.  K.,  did  set  fire  to 

the  dwelling-house  of  the  said  I.  K.  in  which  he  the  said  I.  K.  then 
was,  and  by  means  of  such  fire  did  burn  and  consume  the  said  dwell- 
ing-house,' and  by  the  fire  and  smoke  caused  by  the  burning  of  the  said 
house  the  said  I.  K.  was  suffocated  and  burned,  and  of  which  burning 
and  suffocation  the  said  I.  K.  then  and  there  died  :  wherefore  the  said 
jurors  present,  that  the  said  J.  S.  the  said  I.  K.  with  a  premeditated 
design  then  and  there  did  kill,  murder,  and  assassinate." 
4  D 


626  CODE  OF  PROCEDURE. 

Art.  909.  By  poison. 

"That  J.  S.  having  the  premeditated  design  to  kill  one  I.  K. 

on  the  day  of  in  the  year  ,  did,  in  order  to  effect 

such  design,  mix  a  certain  poison,  called  opium,  in  the  soup  prepared 
for  the  dinner  of  the  said  I.  K.,  and  the  said  I.  K.  having,  on  the 
same  day  and  year,  at  without  any  knowledge  of  such  mix- 

ture, swallowed  a  portion  of  the  said  soup  with  the  said  poison  mixed 
therein,  by  the  effect  of  the  said  poison  became  disordered  in  his  body, 
and  afterwards  of  such  disorder,  caused  by  the  said  poison,  to  wit, 
from  the  day  last  aforesaid  until  the  day  of  now  last  past, 

languished,  and  then  of  the  said  disorder,  so  caused  as  aforesaid,  in  the 
parish  aforesaid,  died:  wherefore  the  jury  present,"  &c.  [as  in  the  last.] 

Art.  910,  In  charging  murder  and  assassination  by  poison,  it  is  ne- 
cessary to  state  that  the  poison  was  taken  by  the  deceased  without 
knowing  that  it  was  poison,  otherwise  it  might  amount  only  to  a  charge 
of  aiding  in  suicide,  which  is  another  offence.  It  is  also  necessary  to 
state  the  time  of  giving  the  poison  and  the  time  of  death. 

Art.  911.  If  the  indictment  state  one  kind  of  poison,  and  the  proof 
is  death  by  another,  it  will  support  the  indictment. 

Art.  912.  When  any  circumstance  in  the  situation  or  the  condition 
of  the  person  killed  gives  to  murder  the  character  of  assassination,  it  is 
sufficient  to  state  that  circumstance  in  the  indictment,  after  the  name  of 
the  person  killed.  The  same  rule  applies  as  to  murder  under  trust, 
where  the  trust  arises  from  the  relative  conditions  or  relationships  of 
the  murderer  with  the  person  murdered;  such  condition  or  relationship 
being  stated  after  the  name  of  the  person  accused.  When  the  trust 
arises  under  a  special  or  implied  promise,  it  must  be  stated  thus: 

"That  J.  S.  on  [inserting  the  date  and  place],  being  [the  master 

of  a  vessel  called  the  Fly,  then  bound  on  a  voyage  from  New  Orleans 
to  Havanna,  took  on  board  the  said  vessel,  as  a  passenger,  one  I.  K.  and 
promised  to  convey  him  (the  danger  of  the  seas  excepted)  from  the 
said  port  of  New  Orleans  to  the  Havanna  ;  but  the  jurors  present,  that 
the  said  J.  S.  violating  the  trust  so  reposed  in  him,  and  with  premedi- 
tated design  to  kill,  did,  on  the  day  of  last,  on  board  the 
said  vessel  called  the  Fly,  then  lying  in  the  river  Mississippi,  within 
the  parish  of  Plaquemines,  make  an  assault  upon  him  the  said  I.  K.  and 
by  force  threw  the  said  I.  K.  from  the  deck  of  the  said  vessel  into  the 
water  in  the  said  river,  where  the  said  I.  K.  sunk  and  was  suffocated 
by  the  said  water,  and  then  and  there,  in  consequence  of  such  suffoca- 
tion, instantly  died  and  was  drowned:]  wherefore,"  &c. 

Art.  913.  Attempt  to  kill  by  poison. 

The  charge  is  the  same  as  that  of  assassination  by  poison,  omitting 
only  the  latter  part  which  charges  the  death. 

Art.  914.   Charge  for  aiding  in  suicide. 

"  That  A.  B.  on  the  day  of  in  the  year  ,  at  the 

parish  of  L.,  committed  suicide  by  [swallowing  a  quantity  of  poison, 
which  then  and  there  killed  him];  and  that  J.  S.  before  that  time,  that 
is  to  say,  on  the  day  of  in  the  parish  aforesaid,  [procured 

the  said  poison  and  gave  it  to  the  said  A.  B.  for  the  purpose  of  enabling 
him  to  commit  the  said  suicide,  he  the  said  J.  S.  well  knowing  that  it 
was  the  intention  of  the  said  A.  B.  to  destroy  his  own  life  [by  swallow 
ing  the  said  poison.] 


CODE  OF  PROCEDURE.  627 


SECTION  XIII. 

Forms  of  indictments  and  other  proceedings  against  the  provisions  of  the  Penal  Code 

respecting  duels. 

Art  915.  Using  insulting  words  or  gestures,  or  making  an  assault 
to  provoke  a  duel. 

"  That  J.  S.  on  [insert  date  and  place],  intending  to  provoke  one 

I.  K.  to  fight  a  duel,  or  if  the  said  I.  K.  should  not  fight  a  duel  in  con- 
sequence of  such  provocation,  that  the  said  I.  K.  should  be  dishonoured, 
did  use  the  following  words,  speaking  to  the  said  I.  K.,  ['you  are  a 
coward'];  or  did  use  an  insulting  gesture,  by  [snapping  his  fingers  in 
the  face  of  the  said  I.  K.];  or  did  make  an  assault  upon  the  said  I.  K., 
by  striking  him  in  the  face  with  the  palm  of  his  hand,  or  other  insult, 
assault,  or  insulting  gesture,"  [describing  it,]  &c. 

Art.  916.  Answers  and  explanations  of  the  defendant. 
"  To  the  district  court  of  the  second  district  of  the  state  of  Louisiana. 

"The  answer  and  explanation  of  J.  S.  to  the  indictment  [or  infor- 
mation] filed  against  him  for  using  insulting  words  [or  gestures]  to 
[or  of]  I.  K.,  [or  assaulting  him,  as  the  case  may  be,]  with  intent  to 
provoke  the  said  I.  K.  to  fight  a  duel,  or  as  an  alternative  to  disho- 
nour him — this  defendant  saith,  that  the  [words  or  gestures,  as  the 
case  may  be,]  charged  in  the  said  indictment  were  used  [in  the  heat 
of  passion,  that  he  is  truly  concerned  for  having  used  them,  and  that 
he  has  the  highest  respect  for  the  said  I.  K.,  and  never  seriously 
intended  to  impeach  his  courage"] — [or  any  other  denial  or  explana- 
tion that  he  may  deem  satisfactory.] 

Art.  917.   Certificate  when  the  court  is  satisfied  with  the  explanation. 

"  By  the  district  court  of  the  second  district,  &c. 

"  Whereas  an  indictment  was  filed  in  this  court,  on  [insert  date,] 
charging  [insert  the  charge]  ;  and  whereas  the  said  J.  S.  afterwards 
presented  to  this  court  an  answer  and  explanation  [or  acknowledg- 
ment] [or  denial]  hereunto  annexed,  which  answer  and  explanation, 
in  the  opinion  of  this  court,  ought  to  satisfy  the  honour  of  the  said 
I.  K.  It  is  therefore  ordered,  that  the  said  answer  be  recorded  and 
published,  together  with  this  judgment." 


CHAPTER  XIX. 


Forms  of  indictments  in  offences  against  civil  and  political  rights 

and  conditions. 

Art.  918.  Against  a  nurse  for  substituting  a  child. 

"That  A.  B.  on  the  day  of  .  in  the  year 

,  at  the  parish  of  L.,  confided  an  infant  male  child  of  him 
the  said  A.  B.,  aged  one  month  or  thereabouts,  to  J.  S.  of  said  pa- 
rish, for  the  purpose  of  suckling  and  nursing  the  said  child  ;  and  that 


628  CODE  OF  PROCEDURE. 

the  said  A.  B.  having  been  absent  from  the  state  for  a  long  time,  to  wit, 
for  five  years  and  upwards,  the  said  J,  S.  afterwards,  on  the 
day  of  in  the  year  ,  and  at  the  parish  afore- 

said, with  intent  to  deceive  the  said  A.  B.  the  [father,  or  mother,  or 
tutor,  or  curator],  of  the  said  child,  substituted  [or  attempted  to  sub- 
stitute] another  child  for  the  one  confided  to  her." 

Art.  919.   For  exposing  an  infant,  under  the  age  of  six  years,  with 
intent  to  abandon  it. 

"  That  A.  B.  having  on  the  day  of  in 

the  year  ,  at  the  parish  of  L.,  confided  a   [female  child, 

named  C.    B.,  aged  two  years  or  thereabouts,   the  daughter  of  the 
said  A.  B.,]  for  the  purpose  of  having  the  said  child  nursed  and  edu- 
cated ;    [and  that  the  said  J.  S.  afterwards  to  wit,  on  the 
day  of  in  the  year  ,  in  the  parish  aforesaid,  ex- 

posed and  deserted  the  said  child  in  a  wood  in  the  said  parish],  where 
the  life  of  the  said  child  was  greatly  endangered,  with  the  intent  the 
said  child  then  and  there  wholly  to  abandon,"  &c. 

Art.  920.  Against  the  father  or  mother  for  exposing  an  infant,  with 
intent  to  abandon  it. 

"That  J.  S.  being  the  [father]  [or  mother]  of  an  illegitimate 

male  child,  born  of  the  said  J.  S.  [or,  it'  the  indictment  be  against  the 
father,  born  of  one  J.  S.]  on  the  day  of  in  the 

year  ,  at  the  said  parish,  did,  on  the  day  and  year  and  at  the 

place  aforesaid,  expose  and  desert  the  said  child  in  a  certain  highway 
where  the  life  of  the  said  child  was  endangered,  with  intent  wholly  to 
abandon  the  said  child." 

Art.  921.  For  fraudulently  producing  a  child  with  intent  to  intercept 
an  inheritance. 

"That  A.   B.    of  the  parish  of  L. ,   long  before  and  on  the 

day  of  in  the  year  ,  was  the  owner 

and  possessor  of  a  large  real  and  personal  estate  in  this  state,  and 
that  the  said  A.  B.  on  the  day  aforesaid,  had  only  two  descendants, 
to  wit,  C.  and  D.  his  sons  ;  and  that  the  said  C.  on  the  day  last  afore- 
said died  without  leaving  any  legitimate  descendants,  whereby  the 
said  D.  became  the  presumptive  heir  to  the  said  A.  B.  ;  and  the  ju- 
rors present,  that  one  J.  S.  afterwards,  to  wit,  on  the  day 
of  in  the  year  ,  at  the  parish  aforesaid,  with  de- 
sign to  intercept  half  of  the  inheritance  of  the  said  A.  B.  from  the 
said  D.  fraudulently  produced  an  infant  male  child,  falsely  pretending 
that  the  said  infant  was  the  legitimate  child  of  the  said  C.  deceased, 
and  which  child  would,  if  he  had  really  been  the  legitimate  child  of 
the  said  C.,  have  stood  in  the  order  of  succession  to  the  inheritance  of 
the  said  A.  B.  equally  with  the  said  D." 

Art.  922.  If  the  offence  be  committed  against  a  collateral  presump- 
tive heir,  and  the  child  produced  be  alleged  to  be  a  descendant,  the 
charge  must  be  "of  a  design  to  intercept  the  whole  inheritance." 

Art.  923.  For  making  a  false  entry  on  register  of  births. 

"  That  J.  S.  on  [insert  date  and  place]  being  then  minister  of 

the  Protestant  Episcopal  Church  in  the  parish  of  L.  and  charged  with 
keeping  the  register  of  marriages  for  the  members  of  the  said  church, 
did  fraudulently  make  a  false  entry  on  such  register,  falsely  register- 
ing therein  that  on  the  day  of  in  the  year 
,  A.  B.  was  married  to  C.  D.  by  him  the  said  minister, 


CODE  OF  PROCEDURE.  629 

[or  by  I.  K.  formerly  minister  of  the  church],  with  intent  to  injure 
one  E.  F.  in  her  condition  and  civil  rights  [as  legitimate  wife  of  the 
said  A.  B."] 

Art.  924.  For  bigamy. 

"  That  J.  S.  on  the  day  of  in  the  year 

,  at  the  parish  of  being  then  married  to  Anne,  the 

daughter  of  J.  B.,  and  the  said  Anne  being  then  living,  contracted 
another  marriage  with  C.  D.  of  the  said  parish,  according  to  the  form 
required  to  give  validity  to  marriages  in  this  state,  he  the  said  J.  S. 
having,  at  the  time  of  his  contracting  the  said  second  marriage,  no 
reasonable  cause  to  believe  that  the  said  Anne,  his  wife,  to  be  dead." 


CHAPTER  XX. 

Forms  of  indictments  for  offences  affecting  private  property. 

SECTION  I. 

Forms  of  indictments  for  burning  and  other  malicious  injuries  to  property. 

Art.  925.  For  maliciously  setting  fire  to  a  dwelling-house  or  other 
property. 

"  That  J.  S.  on  the  day  of  in  the  year 

,  at  the  parish  of  L.,  did  maliciously  set  fire  to  a  dwelling- 
house  belonging  to  [or  inhabited  by]  one  I.  K.  with  intent  to  destroy 
the  same,"  &c. 

Art.  926.  If  the  house  be  not  a  dwelling-house,  but  contains  pro- 
perty of  the  value  of  one  hundred  dollars,  it  must  be  thus  described  : 
"a  certain  house  belonging  to  [or  occupied  by]  1.  K.,  situated  in  the 
same  parish,  containing  personal  property  of  the  value  of  one  hundred 
dollars." 

If  the  house  be  empty,  and  be  not  a  dwelling-house,  it  must  be  de- 
scribed as  a  "house." 

Art.  927.  For  destroying  a  house  with  gunpowder  or  other  explo- 
sive matter. 

"Did  maliciously  place  gunpowder  [or  other  explosive  matter, 

designating  it,]  under  [or  in]  a  certain  house,  [or  a  house  containing 
personal  property  of  the  value  of  one  hundred  dollars,]  [or  a  dwelling- 
house]  belonging  to  [or  occupied  by]  I.  K.  situated  in  the  said  parish, 
and  put  fire  to  the  said  gunpowder  [or  other  explosive  matter]  thereby 
causing  the  same  to  explode,  with  intent  to  destroy  the  said  house,"  &c. 

Art.  928.  The  above  forms  answer  for  the  offence  of  setting  fire  to 
the  other  objects  which  the  Code  of  Crimes  and  Punishments  makes  it 
an  ofience  to  set  fire  to,  adding  a  charge  of  the  value. 

Art.  929.  When  bodily  injury  is  suffered  by  any  one,  by  the  com- 
mission of  the  offence  of  malicious  burning  of  a  house  or  other  property, 
or  the  ofience  be  committed  in  the  night,  or  if  the  buildings  contain 
any  domestic  animals,  those  circumstances  must  be  added  to  the  charge. 

Art.  930.   For  the  destruction  of  a  ship  or  other  vessel,  or  raft,  by  fire. 


630  CODE  OF  PROCEDURE. 

"Did,  designedly  and  with  intent  to  injure,  illegally  set  fire  to 

[or  destroy  by  explosion  of  gunpowder,  stating  the  manner,]  a  certain, 
boat,  [raft,  schooner,  or  other  vessel,  describing  it,]  with  the  cargo  on 
board,  [if  any,  describing  it,]  being,  together  with  such  cargo,  of  the 
value  of  one  hundred  dollars." 

Art.  931.  For  the  malicious  destruction  of  property  by  other  means 
than  by  fire. 

"Did  maliciously  destroy  a  certain  boat,  commonly  called  a 

pirogue,  with  the  cargo,  consisting  of  fifty  hogsheads  of  sugar,  being  then 
and  there  in  the  exclusive  possession  of  one  I.  K.,  and  being,  together 
with  such  cargo,  of  greater  value  than  ten  dollars,  by  boring  a  hole  in 
the  bottom  of  the  said  pirogue  and  sinking  it  in  the  river  Mississippi." 

Art.  932.  For  fraudulently  removing  a  land-mark. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  at  the 

parish  of  did  fraudulently  [or  maliciously,  as  the  case  may  be,] 

remove  a  [cypress  post]  which  had  been  placed  to  serve  and  did  then 
serve  as  a  land-mark  to  designate  the  boundary  between  two  parcels  of 
land  in  the  said  parish,  the  one  in  the  possession  of  [the  said  J.  S.]  and 
the  other  of  the  said  tracts  in  the  possession  of  one  A.  B." 


SECTION  IF. 

Forms  of  indictments  for  house-breaking. 

Art.  933.   House-breaking  by  force,  in  the  night. 

"  That  J.'.S.  on  the  night  of  the  day  of  ,  in  the  year 

,  in  the  parish  of  L.  about  the  hours  of  eleven,  by  force,  entered 
into  a  house  occupied  by  I.  K.  in  the  said  parish,  with  intent  to  steal, 
[or  burn  Ihe  said  house,  or  to  commit  murder,  or  any  other  crime, 
naming  it.-"] 

Art.  934.   For  entering  in  the  clay  and  concealment  until  night. 

"  That  J.  S.  on  the  day  of  in  the  year  ,  at  (he 

parish  of  L.,  entered,  in  the  day-time,  secretly  and  fraudulently  into 
the  house  of  one  I.  K.  situated  in  the  said  parish,  and  concealed  him- 
self in  the  said  house  until  the  night  of  the  same  day,  with  the  intent 
to  steal,"  &c. 

Art.  935.   For  entering  by  discharging  fire-arms  or  throwing  a  stone. 

"Did,  with  intent  to  do  a  bodily  injury  to  one  I.  K.  then  being 

in  a  certain  house  [occupied  by  him  the  said  I.  K.]  in  the  parish  afore- 
said, discharge  a  pistol,  loaded  with  gunpowder  and  a  ball,  into  the  said 
house,  through  the  door  thereof;  [or  throw  a  stone  through  the  window 
of  the  said  house,  or  other  missile,  as  the  case  may  be."] 


SECTION  III. 
Forms  of  indictments  for  the  forcible  or  fraudulent  acquisition  of  propeily. 

Art.  936.  For  a  fraudulent  breach  of  trust. 

"That  J.  S.  on  [insert  date  and  place]  having  before  that  time. 


CODE  OF  PROCEDURE.  631 

at  the  parish  of  Point  Coupee,  received  [ten  bales  of  cotton,  belonging 
to  one  I.  K.]  of  the  value  of  fifty  dollars  each,  [to  be  carried  by  him 
the  said  J.  S.  from  the  said  parish  of  Point  Coupee  to  the  said  parish  of 
L.  to  be  there  delivered  to  one  A.  B.]  did,  on  the  day  and  year  and  at 
the  place  first  above  mentioned,  fraudulently  appropriate  the  said  [ten 
bales  of  cotton]  to  his  own  use." 

Art.  937.  When  the  property  was  received  on  a  contract  of  loan,  or 
letting  or  hiring. 

"  That  J.  S.  on  [state  the  date  and  place]  received  from  one  I. 

K.  on  a  contract  of  letting  and  hiring  a  certain  [bay  horse  with  a  gig,  of 
the  value  of  ]  to  be  used  by  him  the  said  J.  S.  for  the  purpose 

of  conveying  him  to  the  Bayou  St  Johns  in  the  said  parish,  and  to  be 
returned  to  the  said  I.  K.  on  the  same  day  ;  and  the  jurors  further  pre- 
sent, that  the  said  J.  S.  did  not  on  the  said  day  return  the  said  [horse 
and  gig]  to  the  said  I.  K.,  but  did,  on  the  day  and  year  and  at  the  par- 
ish aforesaid,  fraudulently  appropriate  the  said  [horse  and  gig]  to  his 
•own  use" 

Art.  938.  For  the  fraudulent  appropriation  of  property  found. 

"  That  J.  S.  [insert  date  of  time  and  place]  found  a  certain  [red 

morocco  pocket-book,  containing  bank-notes  to  the  value  of  ,] 

which  had  before  that  time  been  casually  lost  by  one  I.  K.,  and  that 
the  said  J.  S.  then  and  there  knowing,  or  having  good  reason  to  believe, 
that  the  said  I.  K.  was  the  owner  of  the  said  [pocket-book  and  its  con- 
tents,] fraudulently  did  then  and  there  appropriate  the  same,"  &c. 

Art.  939.  Where  the  finder  has  no  reason  to  believe  any  designated 
person  to  be  the  owner. 

[As  before  to  the  words  "lost  by  one  I.  K."]  "and  that  the  said 
J.  S.  did  then  and  there  conceal  and  appropriate  the  same  to  his  own 
use." 

Art.  940.   For  opening  and  reading  a  scaled  letter. 

"That  J.  S.  [insert  date  of  time  and  place]  did  open  and  read 

[or  cause  to  be  read]  a  sealed  letter,  written  by  I.  K.  to  A.  B.,  he  the 
said  J.  S.  not  being  authorized  so  to  do  by  the  said  I.  K.,  or  the  said 
A.  B.,  or  by  law." 

Art.  941.   For  malicious  publication — add, 

"And  that  the  said  J.  S.  [or  one  C.  D.]  did  maliciously  and 

without  authority  publish  the  said  letter  [or  a  part  of  such  letter]  by 
printing  the  same  in  the  words  following,  [insert  the  printed  letter,] 
which  publication  is  hereunto  annexed,  he  the  said  J.  S.  [or  C.  D.] 
knowing  the  manner  in  which  the  said  letter  was  obtained." 

Art.  942.  If,  in  the  preceding  form  and  that  immediately  following, 
the  publication  was  in  any  other  mode  than  by  printing,  there  is  no  ne- 
cessity of  inserting  a  copy  of  the  published  letter  in  the  indictment,  or 
giving  any  other  declaration  of  the  letter  than  the  names  of  the  writer 
and  of  the  person  to  whom  it  was  addressed. 

Art.  943.  For  taking  and  publishing  a  letter. 

"Did  take  from  the  legal  possession  of  I.  K.  without  his  con- 
sent, a  certain  letter  written  by  one  A.  B.  to  him  the  said  I.  K.,  and 
did  maliciously  publish  the  same  by  printing  it  in  the  following  words, 
[insert  copy  of  the  published  letter,]  which  printed  letter  is  hereunto 
annexed." 

Art.  944.   For  obtaining  properly  by  false  pretences. 

—  "That  .(.  S.  [insert  dale  of  time  and  place,]  did,  with  a  fraudu- 


632  CODE  OF  PROCEDURE. 

lent  intent,  and  by  the  consent  of  one  I.  K.,  obtain  from  him  one  pair 
of  silver  candlesticks,  belonging  to  him  the  said  I.  K.,  by  falsely  pre- 
tending that  he  the  said  J.  S.  was  the  servant  of  one  A.  B.  a  person 
well  known  to  the  said  I.  K.,  and  that  the  said  A.  B.  had  sent  him  the 
said  J.  S.  to  borrow  the  said  candlesticks  for  him  the  said  A.  B. ;  and 
the  jurors  further  present,  that  the  said  I.  K.  would  not  have  consented 
to  deliver  the  said  candlesticks  to  the  said  J.  S.  if  he  had  not  made  use 
of  the  said  false  pretence. 

Art.  945.  For  false  pretences  by  personification. 

"That  one  J.  S.  with  a  fraudulent  intent,  and  under  the  false 

pretence  that  he  was  G.  H.  of  the  parish  of  Point  Coupee,  planter, 
a  man  of  great  wealth  and  credit,  on  the  day  of 

in  the  parish  of  L.,  induced  one  I.  K.  to  deliver  to  him  the  said  J.  S. 
thus  personating  the  said  G.  H.,  five  hundred  yards  of  raven's  duck 
and  ten  pieces  of  Scotch  plains,  which  he  falsely  asserted  were  wanted 
as  supplies  for  the  plantation  of  the  said  G.  H.  whom  he  falsely  per- 
sonated, and  the  jurors  present,"  [as  in  the  last  form.] 

Art.  946.  If  the  false  pretence  be  that  he  is  another  person  of  the 
same  name,  instead  of  charging  the  false  pretence  as  above,  say,  "  falsely 
pretending  that  he  the  said  J.  S.  was  another  person,  also  named  J.  S. 
of,"~&c.  [as  in  the  last  form.] 

Art.  947.  Charge  for  obtaining  goods  on  the  false  pretence  of  imme- 
diate payment. 

"  That  J.  S.  on  [insert  date  of  time  and  place]  with  a  fraudu- 
lent intent,  induced  one  I.  K.  to  deliver  to  him  [describe  the  goods] 
under  the  false  pretence  that  he  would  immediately  pay  the  sum  of 
dollars  for  them  in  cash  ;  and  the  jurors  further  present,  that 
the  said  J.  S.  refused  to  return  the  said  goods  or  to  pay  the  said  sum, 
although  he  was  afterwards,  on  the  same  day  and  year,  at  the  parish 
aforesaid,  within  one  hour  after  the  delivery  of  the  said  goods,  requir- 
ed so  to  do."  [If  the  demand  was  made  after  one  hour,  state,  "although 
he  was  afterwards,  to  wit,  on  the  day  of  in  the 
same  year,]  [stating  some  time  within  three  days  of  the  delivery]  re? 
quired  so  to  do,  the  said  goods  then  being  in  the  possession  of  the  said 
J.  S.  ;  and  the  jurors  further  present,  that  the  said  I.  K.  would  not  have 
consented  to  deliver  the  said  goods  if  the  said  J.  S.  had  not  made  the 
said  false  pretence  of  immediate  payment  in  cash.  &c. 

Art.  948.  For  giving  a  check  of  no  value  in  payment. 

"  That  J.  S.  on  [insert  date  of  time  and  place]  purchased  from 

one  I.  K.  [insert  description  of  property]  and  with  intent  to  defraud, 
did  give  to  the  said  I.  K.  in  payment  for  the  said  property  a  check  or 
draft,  drawn  by  him  the  said  J.  S.  [or  by  A.  B.]  on  the  bank  of 
payable  on  demand  for  the  sum  of  which  he  the  said  J.  S. 

falsely  pretended  and  affirmed  would  be  paid  at  sight,  he  the  said  J.  S. 
then  and  there  well  knowing  that  the  said  check  or  draft  then  was  of 
no  value  ;  and  the  jurors  further  present,  that  the  said  check  was  of 
no  value,  and  that  the  said  I.  K.  would  not  have  delivered  the  said 
property  if  the  said  J.  S.  had  not  made  the  said  false  and  fraudulent 
pretences,  contrary,"  &c. 

Art.  949.   For  false  pretences  by  producing  false  papers. 

"  That  J.  S.  being  desirous  of  purchasing  one  hundred  bales  of 

fair  Louisiana  cotton  from  one  I.  K.,  with  a  fraudulent  design  to  induce 
him  to  sell  the  said  cotton  at  a  low  price,  produced  a  writing  which  he 


CODE  OF  PROCEDURE.  633 

falsely  pretended  was  a  Liverpool  price  current  [or  letter  from  C.  & 
Co.  of  Liverpool]  dated  the  day  of  last,  in  which 
false  paper  [or  writing]  it  was  stated  that  the  price  of  fair  Louisiana 
cotton,  on  the  day  of  the  date  thereof,  was  seven  pence  sterling  per 
pound  ;  and  the  jurors  present,  that  the  said  paper  [or  writing]  was 
false  and  fraudulent,  and  (hat  giving  credit  to  the  false  pretence  of  the 
said  J.  S.  he  the  said  I.  K.  sold  and  delivered  to  him  one  hundred  bales 
of  cotton  at  the  price  of  fourteen  cents  a  pound,  which  he  would  not 
have  done  if  the  said  J.  S.  had  not  made  the  false  pretences,  and  by 
which  the  said  I.  K.  was  defrauded  of  the  sum  of  dollars." 
Art.  950.  False  pretences  by  cheating  at  cards. 
"  That  J.  S.  on  [insert  date  of  time  and  place]  fraudulently  ob- 
tained from  one  A.  B.  the  sum  of  dollars  at  a  game  of  [skill 
and  chance  called  whist]  by  means  of  packing  the  cards  in  such  a  man- 
ner [as  to  keep  in  his  own  hand  all  the  court  cards,  or  other  means, 
describing  them,]  which  means  the  jurors  present  were  other  than  those 
which  would  have  been  given  to  the  said  J.  S.  by  the  regular  chances 
of  the  said  game,  or  by  the  fair  exercise  of  his  skill  therein,  he  the 
said  J.  S.  falsely  pretending  that  the  said  sum  of  money  was  won  by 
the  regular  chances  of  the  said  game,  and  the  fair  exercise  of  his  skill 
therein  ;  and  the  jurors  further  present,  that  the  said  A.  B.  would  not 
have  delivered  and  paid  the  said  sum  of  dollars  if  the  said 
J.  S.  had  not  made  the  said  false  and  fraudulent  pretences." 
Art.  951.  Charge  in  indictment  for  theft. 

"  That  J.  S.  or  [insert  date  of  time  and  place]  one  piece  of  lace, 

of  the  value  of  dollars,  the  property  of  A.  B.,  from  his  poss- 

ession fraudulently  did  take  without  his  assent." 
Art.  952.  Theft  by  effraction. 

"That  J.  S.  [insert  date  of  time  and  place]  in  the  day  time, 

with  a  fraudulent  design,  did  enter  into  a  certain  house  occupied  by  A. 
B.  [or  ship  called  the  Bee]  and  one  piece  of  lace  of  the  value  of 
dollars  the  property  of  A.  B.  and  in  his  possession,  then  and  there  be- 
ing, fradulently  did  take  without  the  assent  of  the  said  A.  B." 
Art.  953.  Breaking  into  a  ship  or  house  with  intent  to  steal. 

"That  J.  S.  on  [insert  date  of  time  and  place]  with  intent  to 

commit  a  theft,  a  certain  house  belonging  to  [or  occupied  by]  one  A. 
B.  did  break  and  enter,"  &c. 

If  theft  be  committed,  add,  "and  one  piece  of  linen  of  the  value 
of  belonging  to  the  said  A.  B.  from  his  possession  fraudu- 

lently did  then  and  there  take,  without  the  assent  of  the  said  A.  B." 

If  any  one  were  in  the  house  or  ship,  then  add,  "  and  the  jurors 
further  present,  that  C.  D.  was  at  the  time  of  the  said  entry  in  the 
said  house  [or  ship,]  and  did  resist  the  said  J.  S.  [or  was  prevented  by 
fear  from  resisting  him,  as  the  case  may  be."] 

Art.  954.  For  entering  a  house  and  stealing  by  breaking  a  chest  or 
box,  &c. 

«  That  J.  S.  on,  &c.  in  the  day  time,  with  a  fraudulent  intent, 

into  a  certain  house  belonging  to  [or  in  the  occupation  of]  one  A.  B. 
did  enter,  and  a  certain  box  [or  chest,  or  other  enclosed  place]  did  for- 
cibly break,  and  a  piece  of  gold  coin,  then  in  the  said  box,  belonging  to 
A.  B.,  being  found,  did  fraudulently  take,  without  the  assent  of  the 
said  A.  B." 
4  E 


634  CODE  OF  PROCEDURE. 

Art.  955.  For  fraudulently  appropriating  property  taken  from  a 
wrecked  vessel. 

"  That  a  certain  ship  or  vessel,  of  which  the  name  and  the 

owners  are  to  the  jurors  unknown,  was  wrecked  [or  stranded]  [or  burn- 
ed] on  the  west  shore  of  the  Lake  Pontchartrain,  in  this  state,  on  the 
day  of  in  the  year  in  the  parish  of 

New  Orleans  ;  and  that  J.  S.  on  the  day  and  year  and  at  the  place  last 
aforesaid,  ten  bales  of  cotton,  driven  on  shore  from  the  said  wreck,  did 
fraudulently  appropriate,  knowing  it  to  have  proceeded  from  the  said 
wreck." 

Art.   956.   For  privately  stealing  from  the  person. 

"  That  J.  S.  on  [insert  date  of  time  and  place]  one  [gold  watch 

of  the  value  of  fifty  dollars,  belonging  to  and  in  the  possession  of  I. 
K.,]  privately  from  the  said  I.  K.  did  fraudulently  take,  without  his 
assent." 

Art.  957.   For  robbery. 

"  That  J.  S.  [date,  &c.]  from  the  person  of  one  I.  K.  by  force 

and  against  his  will,  one  gold  watch  of  the  value  of  fifty  dollars,  be- 
longing to  him,  did  fraudulently  take." 

Art.  958.  For  robbery  by  threats  of  violence. 

"  That  J.  S.  [date,  &c.]  from  the  person  of  one  I.  K.  one  hun- 
dred gold  coins  of  the  United  States,  called  eagles,  belonging  to  him 
the  said  I.  K.  did  fraudulently  take,  and  did  force  the  said  I.  K.  to  de- 
liver by  threatening  the  said  I.  K.  [to  accuse  him  of  the  crime  of  rape]; 
or  [to  burn  the  house  of  the  said  I.  K.]  ;  or  [to  assassinate  him]  or  [to 
do  any  other  injury  to  his  person,  property,  or  character,  describing 
it."] 

Art.  959.  For  receiving  property,  knowing  it  to  be  fraudulently  ob- 
tained. 

"That  J.   S.   on  [date  &c.]  did  fraudulently  receive  [or  did 

fraudulently  conceal  or  endeavour  to  conceal]  one  gold  watch,  belong- 
ing to  one  I.  K.  of  the  value  of  fifty  dollars,  which  had  been  fraudu- 
lently taken  [or  obtained]  from  him  by  [theft,]  or  [fraudulent  breach 
of  trust,]  or  [by  the  fraudulent  appropriation  of  property  found,]  or 
[by  false  pretences,]  he  the  said  J.  S.  well  knowing  that  the  said  pro- 
perty had  been  so  fraudulently  taken  [or  obtained."] 

Art.  960.  For  attempts  to  defraud  by  threats. 

"  That  J.  S.  with  a  fraudulent  intent  did,  on  [insert  date,  &c.] 

threaten  one  I.  K.  that  he  would  [set  fire  to  the  dwelling-house  of]  him 
the  said  I.  K.  if  he  the  said  I.  K.  did  not  [give  him  a  sum  of  one  hun- 
dred dollars,]  or  [did  not  procure  for  him  the  place  of  under-sheriff  of 
the  parish],  as  the  means  of  avoiding  the  execution  of  the  said  threat." 

Art.  961.  If  the  threat  be  of  injury  to  person  or  reputation,  or  any 
other  injury  to  property  than  the  one  above  specified,  it  must  be  par- 
ticularly set  forth. 

Art.  962.  If  the  threat  be  in  writing,  it  must  be  in  the  following 
form  : 

"  That  J.  S.  on  [insert  date,  &c.]  did,  with  a  fraudulent  intent, 

make  an  instrument  in  writing,  and  send  the  same  to  one  I.  K.,  which 
instrument  is  in  the  words  following,  to  wit :  ['Mr.  I.  K.,  if  you  wish 
to  avoid  the  burning  of  your  house,  or  the  infamy  of  having  made  an 
attempt  to  suborn  a  witness,  you  will  do  well  to  enclose  a  bank-note 
for  one  hundred  dollars,  by  post,  directed  to  A.  B.  at  L.'] — meaning 


CODE  OF  PROCEDURE.  635 

thereby  to  demand  of  the  said  I.  K.  the  sum  of  one  hundred  dollars 
as  the  means  to  avoid  the  destruction  of  the  house  of  the  said  I.  K.  and 
an  accusation  of  having  attempted  to  suborn  a  witness  to  commit  per- 
jury, contrary,"  &c. 

Art.  963.  For  writing  a  malicious  threatening  letter,  without  any 
design  to  defraud. 

"That  J.  S.  [insert  date]  maliciously  intending  to  vex  and  dis- 
quiet one  I.  K.  wrote  [or  caused  to  be  written  and  sent  or  delivered, 
as  the  case  may  be,]  to  the  said  I.  K.  a  certain  writing,  in  the  words 
following,  to  wit,  [insert  the  letter."] 


CHAPTER  XXI. 


Forms  of  indictments  for  conspiracy. 

Art.  964.   Conspiracy  to  rob  and  murder. 

"  That  J.  S.  and  N.  0,  on  [insert  date]  fraudulently  intending 

to  rob  and  murder  one  A.  B.  agreed  together,  or  with  other  persons 
to  the  jurors  unknown,  [according  to  the  fact]  [that  the  said  N.  0.  he 
being  then  and  there  a  domestic  servant  of  the  said  A.  B.  should  ad- 
mit the  said  J.  S.  at  midnight,  on  some  subsequent  day  into  the  house 
of  the  said  A.  B.,  and  that  they  should  then  and  there  strangle  and  kill 
the  said  A.  B.  in  his  bed,  and  should  carry  off  and  steal  all  the  money 
and  other  valuable  property  found  in  the  said  house."] 

Art.  965.  Conspiracy  to  make  a  false  accusation. 

"That  J.S.  and  N.  0.  on  [insert  date]  intending  maliciously 

to  injure  one  A.  B.  agreed  together,  or  [with  others,  as  above,]  that 
they  the  said  J.  S.  and  N.  0.  would  accuse  the  said  A.  B.  of  having 
committed  the  crime  of  rape  upon  one  C.  D.,  they  the  said  J.  S.  well 
knowing  that  the  said  A.  B.  was  innocent  of  any  such  crime." 

Art.  966.  Conspiracy  to  lower  wages. 

"  That  J.  S.,  N.  0.  and  L.  M.  on  [insert  date]  being  master-shoe- 
makers in  the  said  city  of  New  Orleans,  entered  into  an  agreement  and 
combination  with  each  other,  and  with  other  master-shoemakers  in  the 
said  city  to  the  jurors  unknown,  that  they  would  give  to  the  journey- 
men shoemakers,  whom  they  should  severally  employ,  no  more  than 
[the  sum  of  for  each  day's  work,  or  for  each  pair  of  shoes,  &c. 

stating  the  substance  of  the  agreement;  and  if  any  penalty  be  imposed 
by  the  agreement  for  a  breach  of  it,  state  the  same  particularly."] 

Art.  967.  Conspiracy  to  raise  wages  and  abridge  the  time  of  labour. 

"That  J.  S.,  N.  0.  and  R.  P.  being  persons  usually  working  as 
journeymen  in  the  trade  of  shoemaking,  did,  on  [insert  date]  enter  into 
an  agreement  and  conspiracy  to  and  with  each  other,  and  to  and  with 
divers  other  persons  to  the  jurors  unknown,  that  they  would  not  work 
at  their  said  trade  unless  they  were  paid  at  the  rate  of  for  each 

pair  of  shoes,  and  for  each  pair  of  boots,  or  for  each  day 

they  should  work  at  their  said  trade  ;  [or  that  they  would  work  only 
ten  hours  for  a  day's  work;]  [state,  as  above,  the  substance  of  the  agree- 
ment, and  if  it  contained  any  penalty  for  a  breach  of  it,  or  any  pro- 
ceeding to  oblige  others  to  enter  into  the  conspiracy,  state  the  same."] 


636  CODE  OF  PROCEDURE. 

Art.  968.  The  agreement  is  the  offence,  but  if  any  thing  be  done  in 
consequence  of  it  to  carry  it  into  execution  (as  if  the  penalty  imposed 
by  the  agreement  be  enforced,  or  any  injury  be  offered  to  others  to 
force  them  to  join  in  the  conspiracy,)  it  should  be  stated,  that  the  court 
may  apportion  the  punishment. 

Art.  969.  Conspiracy  to  raise  the  price  of  flour. 

"  That  J.  S.  and  I.  K.  being  merchants  dealing  in  the  purchase  and 
sale  of  flour,  on  [insert  date]  did  enter  into  a  conspiracy  and  agreement 
to  and  with  each  other,  and  to  and  with  other  persons  to  the  jurors 
unknown,  that  they  would  purchase  each  of  them  one  thousand  barrels 
of  flour,  and  would  not  sell  the  same  for  less  than  twelve  dollars  for 
each  barrel,  [insert  the  conditions  of  the  agreement  and  the  penalty,  if 
any,  for  its  breach."] 


CHAPTER  XXII. 


Forms  of  indictments  against  principals  who  become  such  by  aiding 
or  encouraging  the  act,  against  accomplices  and  accessaries. 

Art  970.  Whenever  any  one,  who  hath  not  himself  committed  the 
offence,  hath  made  himself  a  principal  by  any  of  the  acts  enumerated 
in  the  third  article  of  the  fifth  chapter  of  the  first  book  of  the  Code  of 
Crimes  and  Punishments,  he  is  a  principal  in  the  second  degree,  and 
he  may  be  indicted  jointly  with  the  one  who  personally  committed  the 
offence,  or  separately;  but,  in  either  case,  the  commission  of  the  offence 
and  the  act  which  made  the  abettor  liable,  must  be  stated  according  to 
the  truth  ;  but  if  he  be  present  at  the  act,  it  will  be  sufficient  to  state, 
that  he  was  so,  and  that  he  aided  or  encouraged  the  others,  without 
stating  in  what  manner  particularly. 

Art.  971.  The  person  becoming  liable,  as  a  principal,  under  the  pro- 
visions of  the  above  recited  article,  may  be  indicted,  tried,  and  punished, 
although  the  one  who  personally  committed  the  offence  should  have 
escaped,  or  be  acquitted,  or  pardoned,  but  the  commission  of  the  offence 
must  be  proved. 

Art.  972.  Indictment  against  principals  in  the  first  and  second  de- 
gree, jointly,  for  murder. 

"  That  J.  S.  on  the  day  of  in  the  year  at  the 

parish  of  L.,  with  a  premeditated  design  to  kill  one  I.  K.,  made  an  as- 
sault upon  the  said  I.  K.,  and  with  a  dirk  inflicted  a  mortal  wound  on 
the  left  breast  of  him  the  said  I.  K.,  of  which  wound  he  the  said  I.  K. 
afterwards,  on  the  same  day  and  year,  at  the  place  aforesaid,  died  :  and 
that  L.  M.  during  the  time  that  the  said  J.  S.  was  committing  the  said 
offence  stood  at  a  short  distance  from  the  place  where  the  said  murder 
was  committed,  knowing  that  the  said  J.  S.  was  engaged  in  the  perpe- 
tration thereof,  and  with  the  intent  to  keep  watch  and  give  notice  to 
the  said  J.  S.  of  the  approach  of  any  one  who  might  interrupt  the  com- 
mission of  the  said  offence;  whereupon  the  jurors  aforesaid  present,  that 
the  said  J.  S.  and  L.  M.  the  said  I.  K.  in  manner  aforesaid  did  kill  and 
murder,  contrary,"  &c. 

Art.  973.  Indictment  against  the  principal  in  the  second  degree  alone. 


CODE  OF  PROCEDURE.  637 

«  That,  &c.  [insert  the  charge  against  the  person  who  actually  com- 
mitted the  offence,  according  to  the  forms  prescribed  for  such  offence, 
then  add,]  and  the  jurors  aforesaid  do  further  present,  that  L.  M.  at 
the  time  the  said  offence  wa~s  committed  was  present  [and  by  words 
and  gestures  did  encourage  the  said  J.  S.  to  commit  the  said  offence, 
he  the  said  L.  M.  well  knowing  the  unlawful  intent  of  the  said  J.  S. 
in  committing  the  said  offence."] 

Art.  974.  Indictment  against  an  accomplice  for  having  committed 
the  offence,  &c. 

"  That,  &c.  [state  the  offence,  according  to  the  proper  form,  and 
then  add,]  and  the  jurors  further  present,  that  L.  M.  before  the  said 
offence  was  committed,  to  wit,  on  the  day  of 

in  the  year  aforesaid,  at  the  parish  aforesaid,  did  unlawfully  advise, 
command,  and  encourage,  [or  did  agree  to  aid,]  or  [did  promise  the 
sum  of  dollars  to,]  or  [offer  his  interest  in  procuring  the 

office  of  sheriff  of  the  county  of  L.  for,]  or  [did  prepare  and  furnish 
the  pistol  to,  &c.  as  the  case  may  be,]  the  said  J.  S.  in  order  to  induce 
him  to  commit  the  said  offence." 

Art.  975.   Indictment  against  an  accessary. 

"That,  &c.  [state  the  offence,  according  to  the  proper  form,  after 
which  add,]  and  the  jurors  aforesaid  do  further  present,  that  L.  M. 
well  knowing  the  said  J.  S.  to  have  committed  the  said  offence  as 
aforesaid,  afterwards,  to  wit,  on  the  day  of 

in  the  year  aforesaid,  at  the  parish  of  L.  did  conceal  the  said  J.  S.  or 
aid  him,  in  order  that  he  might  effect  his  escape  [from  arrest,  or 
trial,  or  the  execution  of  his  sentence,  as  the  case  may  be."] 


CHAPTER  XXIII. 


Of  informations, 

Art.  976.  Form  of  an  information  by  the  attorney-general,  or  dis- 
trict attorney. 

"Be  it  remembered,  that  on  the  day  of  in 

the  year  ,  in  the  criminal  court  of  the  state  of  Louisiana, 

came  J.  P,  attorney-general  of  the  state  of  Louisiana,  and  gives  the 
said  court  to  be  informed,  that,"  &c.  [as  in  an  indictment.] 

Art.  977.  After  an  information  has  been  filed,  the  prosecution  can- 
not be  dismissed  but  by  leave  of  the  court,  on  motion  of  the  public 
prosecutor,  who  must  state  his  reasons  for  such  motion,  which  motion 
with  the  reasons  must  be  entered  on  the  minutes  of  the  court,  together 
with  the  decision  of  the  court  on  such  motion  whether  it  be  allowed 
or  rejected. 

Art.  978.  All  the  provisions  respecting  indictments  in  this  Code 
apply  to  informations  in  cases  where  by  law  they  may  be  filed,  un- 
less the  contrary  is  expressed  or  results  from  the  nature  of  the  two 
modes  of  proceeding. 


638  CODE  OF  PROCEDURE. 


CHAPTER  XXIV. 


Of  joining  different  offences  and  persons  in  the  same  indictment, 
and  of  different  courts,  for  the  same  offence. 

Art.  979.  No  indictment  can  contain  a  charge  for  more  offences  than 
one,  under  the  modification  hereinafter  in  this  chapter  contained. 

Art.  980.  The  practice  of  inserting  different  charges  or  counts  in 
an  indictment  for  the  same  offence,  is  abolfshed  ;  but  where  there  is 
evidence  before  a  grand  jury  sufficient  to  prove  a  fact  which  is  an 
offence,  and  the  evidence  renders  it  doubtful  whether  it  was  done 
with  one  or  the  other  of  several  intents,  either  of  which  would  aggra- 
vate the  offence,  the  jury  may  charge  the  intent  in  the  alternative, 
and  the  accused  may  be  convicted  on  the  proof  of  either  on  the  trial. 

Art.  981.   Form  of  indictment  charging  the  intent  in  the  alternative. 

"That  J.  S.  on  &c.  [insert  date]  at  the  parish  of  L.,  upon  one  A. 
B.  did  make  an  assault  by  seizing  the  said  A.  B.  by  the  throat  with 
his  hands  and  striking  him,  &c.  with  the  intent  either  to  murder  the  said 
A.  B.  or  to  disfigure  him,  or  to  do  a  permanent  injury  by  laming 
him,"  &c. 

Art.  982.  In  cases  of  libel  it  will  be  sufficient  to  charge  in  the 
indictment  that  the  defendant  "made,"  "published,"  or  "circu- 
lated," the  libel  ;  and  proof  of  either,  according  to  the  definition  of 
those  terms  in  the  Penal  Code  of  Crimes  and  Punishments,  will  be 
sufficient.  In  like  manner,  an  indictment  will  be  good  which  charges 
that  the  defendant  either  made  the  counterfeit  coin,  or  a  forged  instru- 
ment, or  had  the  same  in  possession,  with  intent  to  pass,  (in  cases 
where  such  possession  is  made  an  offence);  or  that  he  knowingly 
uttered  or  passed  the  same,  naming  the  person  to  whom. 

Art.  983.  In  indictments  for  all  offences  against  private  property 
in  which,  according  to  the  forms  herein  before  prescribed,  it  is  necess- 
ary to  aver  the  name  of  the  owner  or  possessor  of  the  property,  it 
will  be  sufficient  to  state  in  the  alternative  that  either  A.  B.  of  C.  D. 
was  such  possessor  or  owner  ;  and  in  like  manner,  proof  of  either  will 
be  sufficient. 

Art.  984.  The  several  persons  may  be  joined  in  the  same  indict- 
ment in  the  following  cases  : 

The  person  who  gives  and  he  who  receives  a  bribe. 

The  principal,  the  accomplice,  and  accessary. 

The  suborner  and  the  perjurer. 

The  employer  and  the  actual  assassin,  (in  cases  of  assassination  for 
hire.) 

,The  adulteress  and  her  paramour. 

Joint  rioters,  conspirators,  and  all  others  who  jointly  commit  an 
offence. 

Art.  985.  Although  several  be  joined,  yet  each  defendant  may  de- 
mand and  have  a  separate  trial,  except  in  case  of  adultery,  as  is  before 
provided  for. 


CODE  OF  PROCEDURE.  639 


CHAPTER  XXV. 


Of  the  mode  of  making  the  charge  in  cases  of  repetition  of  the 

offence. 

Art.  986.  That  the  party  accused  has  been  before  convicted  of  an 
offence  of  the  same  nature  may  be  stated  in  the  indictment  accord- 
ing to  the  following  form  :  after  the  charge  of  the  offence  add,  "and 
the  jurors  do  further  present,  that  the  said  J.  S.  was  heretofore  in 
the  court  of  [state  the  court]  in  or  about  the  year  con- 

victed of  [state  the  offence,  and  if  he  was  more  than  once  convicted, 
state  the  same  in  like  manner,  and  conclude,]  wherefore  the  said  ju- 
rors present,  that  the  said  J.  S.  hath  [a  second  or  third  time]  com- 
mitted an  offence  affecting  [private  property,  according  to  the  nature 
of  the  offence. "] 

Art.  987.  If  the  prior  convictions  are  discovered  after  the  time  of 
finding  the  indictment,  but  before  the  trial,  the  public  prosecutor  may 
give  notice  to  the  defendant,  at  any  time  before  the  trial,  that  he  will 
give  evidence  of  such  conviction,  specifying  the  offence  and  the  time 
as  is  above  set  forth,  and  shall  then  be  allowed  to  give  such  evidence. 

Art.  988.  If  the  prior  conviction  be  discovered  after  conviction, 
whether  sentence  be  passed  or  not,  the  record  of  the  conviction  shall 
be  received  by  the  court,  and  the  defendant  shall  be  brought  up  and 
required  to  show  cause  why  the  additional  punishment  should  not  be 
inflicted,  which  he  may  do  by  denying  that  he  is  the  person  formerly 
convicted.  If  the  identity  is  denied,  it  shall  be  tried  by  a  jury,  and 
the  burthen  of  proof  shall  be  on  the  public  prosecutor. 


A  CODE  OF  EVIDENCE, 


4  F 


INTRODUCTORY  TITLE. 


Art.  1.  The  Code  of  Evidence,  which  is  applicable  as  well  to  civil 
as  to  criminal  cases,  will  direct  judges,  other  magistrates,  ministers  of 
justice  and  jurors,  what  proof  is  sufficient  to  commit,  to  indict,  and  to 
convict  an  offender,  against  the  Code  of  Crimes  and  Punishments. 

Art.  2.  Where,  in  this  Code,  examples  are  given  to  illustrate  certain 
rules  of  evidence,  they  are  never  intended  as  an  enumeration  of  all  the 
cases  coming  within  such  rules.  When  a  limitation  to  certain  enume- 
rated cases  is  intended,  it  is  unequivocally  so  expressed. 

Art.  3.  The  substantive  word  judge  in  this  Code  means  the  power 
which  has  the  right  of  deciding  on  the  subject  matter  to  which  the 
article  in  which  it  is  used  applies;  it  may,  according  to  the  subject,  mean 
either  the  magistrate,  the  jury,  or  the  arbitrator  or  referee. 

Art.  4.  All  the  rules  of  evidence  which  are  laid  down  to  regulate 
the  introduction  and  declare  the  effect  of  proof  adduced  on  the  principal 
matter  in  dispute  in  judicial  investigation,  apply  also  to  the  introduc- 
tion and  effect  of  the  same  kind  of  proof  on  any  incidental  question, 
except  when  it  is  otherwise  expressly  provided. 

Art.  5.  Particular  provisions  in  this  Code  control  general  rules,  but 
in  the  particular  case  only  in  which  they  are  introduced. 

Art.  6.  By  the  expression  "  immoveable  estate,"  or  "  immoveables," 
is  meant  all  that  is  made  such  by  destination  or  provision  of  law,  as 
well  as  by  nature. 

Art.  7.  When  the  word  "evidence"  is  used  in  this  Code,  it  always 
means  "  legal  evidence,"  as  herein  defined. 

Art.  8.  In  all  cases  whatever  where  any  thing  is  declared  to  be  legal 
evidence,  it  must  be  understood  to  be  with  the  proviso  that  it  is  applica- 
ble to  the  issue  or  fact  in  litigation.  Whether  so  applicable  or  not 
(when  there  is  no  express  provision)  it  is  left  to  the  discretion  of  the 
court  to  determine.  But  in  the  exercise  of  this  discretion  great  liber- 
ality must  be  used,  and  no  legal  evidence  excluded  that  has  even  a 
remote  application  to  the  question. 

Art.  9.  If  in  any  criminal  case  the  provisions  of  this  Code,  for  the 
admission  or  exclusion  of  evidence,  shall  in  the  opinion  of  the  court 
be  found  to  have  operated  unjustly  ;  and  in  consequence  thereof  any 
one  is  convicted,  judgment  shall  not  be  pronounced  until  after  the  re- 
port has  been  made  to  the  legislature,  in  the  manner  hereinafter  pro- 
vided. But  if  such  provision  shall  operate,  in  the  opinion  of  the  court, 
in  favour  of  the  accused,  who  shall,  in  consequence  of  evidence  ad- 
mitted or  excluded  conformably  to  such  provision,  be  acquitted,  judg- 
ment of  acquittal  shall  be  rendered:  and  in  either  of  these  cases  (as  well 
as  in  civil  cases,  where  a  verdict  has,  in  the  opinion  of  the  court,  been 


644  CODE  OP  EVIDENCE. 

unjustly  given  in  consequence  of  evidence  admitted  or  excluded  con- 
formably to  such  provision)  a  full  report  shall  be  made  to  the  legisla- 
ture of  the  case,  together  with  the  reasons  of  the  court  for  thinking  the 
particular  provision  unjust  or  inexpedient ;  and  if  the  legislature  shall, 
at  the  first  session  after  the  report,  make  the  alterations,  in  substance, 
as  suggested  by  the  court,  a  new  trial  shall  he  given  in  the  civil  suit, 
and  to  the  party  convicted  in  a  criminal  cause;  otherwise  judgment  shall 
be  given  on  the  verdict. 

Art.  10.  If  in  the  trial  of  any  cause  a  question  shall  arise,  relative  to 
the  admission  of  evidence  for  the  decision  of  which  no  provision  is 
made  in  this  Code,  the  court  shall  decide  according  to  such  principles 
as  they  believe  the  legislature  would  have  been  guided  by  had  the  case 
been  foreseen ;  and  shall,  in  like  manner,  report  the  case  and  their  de- 
cision, with  the  reason  thereof,  to  the  legislature.  And  although  the 
legislature  should  amend  this  Code  in  consequence  of  such  representa- 
tion, or  should  omit  so  to  do,  it  shall  not  affect  the  decision  if  it  be 
made  in  a  civil  cause. 

Art.  11.  But  if  the  case  provided  for  by  the  last  preceding  article 
be  a  criminal  one,  and  the  principle  adopted  by  the  court  shall  have 
admitted  or  excluded  evidence,  to  the  prejudice  of  the  accused,  which 
evidence  would  not  have  been  so  excluded  or  admitted  as  the  Code 
now  stands,  and  the  accused  shall,  in  consequence  thereof,  be  convicted, 
no  judgment  shall  be  had  on  such  conviction,  but  the  defendant  shall 
be  discharged. 

Art.  12.  The  last  three  preceding  articles  relate  only  to  questions  on 
the  admissibility  of  evidence;  all  questions,  as  to  its  credit  and  weight, 
when  admitted,  must  be  decided  by  the  judge  or  the  jury,  to  which- 
ever the  fact  is  submitted,  except  in  cases  of  evidence  declared  by  law 
to  be  conclusive. 


CODE  OF  EVIDENCE.  645 


BOOK  I. 


OF  THE  NATURE  OF  EVIDENCE,  AND  OF  ITS  SEVERAL  KINDS. 


TITLE  I. 


GENERAL  PRINCIPLES  AND  DEFINITIONS. 

Art.  13.  Evidence  is  that  which  brings  or  contributes  to  bring  the 
mind  to  a  just  conviction  of  the  truth  or  falsehood  of  any  fact  asserted 
or  denied. 

Art.  14.  From  the  above  definition  it  results  that  judges  of  fact,  ex- 
cept in  cases  of  proof  declared  to  be  conclusive,  are  not  bound  to  decide 
in  conformity  with  the  declarations  of  any  number  of  witnesses,  which 
do  not  produce  conviction  to  the  mind,  against  a  less  number,  or  against 
presumptions  which  do  satisfy  the  mind. 

Art.  15.  A  conviction  produced  by  evidence,  which  ought  not,  ac- 
cording to  the  rules  of  true  reason,  to  have  that  effect,  is  not  a  just 
conviction.  But  different  minds  may  have  different  conceptions  of  what 
is  true  reason;  the  law,  in  order  to  secure  uniformity  of  decision  on  this 
point,  declares  what  evidence  ought,  in  given  cases,  to  produce,  or  con- 
tribute to  produce  such  conviction,  and  that  evidence  is  called  legal 
evidence. 


TITLE  II. 


DISTRIBUTION  OF  THE  SUBJECT. 

Art.  16.  LEGAL  EVIDENCE,  in  relation  to  its  nature,  is  of  two  kinds: 
that  which  the  judge  receives  from  his  own  knowledge,  and  that  which 
he  derives  from  other  sources;  the  latter  is  either  testimonial,  scriptory, 
or  substantive. 

TESTIMONIAL  EVIDENCE  is  that  which  is  offered  by  the  relation  of 
any  other  person,  whether  communicated  to  the  judge  orally  or  in 
writing. 

SCRIPTORY  EVIDENCE  comprehends  all  written  evidence  other  than 
the  declarations  of  witnesses  reduced  to  writing. 

SUBSTANTIVE  EVIDENCE  is  that  which  is  produced  by  the  exhibition 
of  any  object  which  from  its  nature,  situation,  or  appearance,  creates  a 
belief  of  the  truth  or  falsehood  of  the  allegation  in  dispute. 


646  CODE  OF  EVIDENCE. 

Art.  17.  Evidence  being  different  in  the  degree  of  effect  which  it 
ought  to  produce,  is  therefore  divided  into  three  kinds  :  presumptive 
evidence,  direct  evidence,  and  conclusive  evidence. 

Art.  18.  Presumptive  evidence  is  that,  which  by  directly  proving 
one  fact,  renders  the  existence  of  another  fact  probable. 

Art.  19.  Direct  evidence  is  that,  which  if  true,conclusively  establishes 
or  destroys  the  proposition  in  question. 

Art.  20.  Conclusive  evidence  is  that,  which  by  law  is  declared  to  be 
such  proof  of  that  which  it  asserts,  as  cannot,  while  it  exists,  be  con- 
tradicted by  other  testimony.  The  law  does  not  and  cannot  in  this  case 
command  belief;  but  on  the  exhibition  of  certain  evidence  it  does  com- 
mand such  decision,  as  would  be  the  result  of  a  belief  in  the  existence 
of  the  fact  which  such  evidence  purports  to  prove. 

Art.  21.  These  degrees  may  be  produced  by  either  of  the  kinds  of 
evidence  above  enumerated ;  the  actual  inspection  or  perception  of  the 
judge,  the  declaration  of  witnesses,  the  exhibition  of  written  proof,  or 
of  substantive  evidence.  'The  law  under  each  of  these  divisions  is  de- 
clared in  the  subsequent  titles. 

Art.  22.  Every  offence  being  in  this  system  clearly  defined  and 
directed  to  be  distinctly  charged  in  the  act  of  accusation,  all  rules  of 
evidence  applicable  to  one,  are  applicable  to  all ;  therefore,  in  criminal 
cases,  whatever  constitutes  the  offence,  whether  act,  omission,  or  intent, 
must  be  supported  by  such  LEGAL  EVIDENCE  as  proves  the  allegation. 

Art.  23.  So  in  civil  cases,  all  fictions  being  in  like  manner  discarded, 
and  the  demand  and  defence  being  required  to  be  set  forth  according  to 
the  truth,  the  same  rules  of  evidence  are  applicable  to  all  actions. 

Art.  24.  It  results  from  the  two  preceding  articles,  that  no  provisions 
are  necessary  in  this  Code  to  designate  what  evidence  is  required  or 
permitted  in  each  kind  of  action  or  division  of  offence. 


CODE  OF  EVIDENCE. 


647 


BOOK  II. 

OF  THE  RULES  APPLICABLE  TO  THE  SEVERAL  KINDS  OF  EVIDENCE. 

v 

TITLE  I. 

OF  THE  EVIDENCE  OFFERED  TO  A  JUDGE  FROM  HIS  OWN  KNOWLEDGE. 

Art.  25.  Under  some  circumstances  the  judge  is  allowed  to  frame  his 
decision  upon  the  conviction  brought  to  his  mind  by  means  of  his  own 
senses  without  the  intervention  of  any  other  proof.  But  he  can  do  this 
only  in  cases  particularly  provided  by  law ;  these  are  especially  desig- 
nated in  the  different  codes  of  this  system. 

Art.  26.  In  all  other  cases  than  those  so  specially  provided  for,  the 
judge  hears  the  testimonial,  sees  the  scriptory,  or  the  substantive,  evi- 
dence, and  must  decide  (not  from  his  knowledge,  but)  from  the  convic- 
tion produced  on  his  mind  by  this  evidence. 

Art.  27.  The  power  given  to  a  magistrate  to  arrest  when  an  offence 
is  committed  in  his  presence;  to  a  judge,  to  determine  on  the  authenti- 
city of  a  record,  to  order  the  removal  of  a  person  who  interrupts  the 
proceedings  of  a  court,  and  the  authority  given  to  the  magistrates  to 
determine  when  the  military  may  be  directed  to  act  in  support  of  the 
civil  power,  are  examples  of  cases  in  which  the  judge  is  empowered  to 
act  on  evidence  derived  from  his  own  knowledge. 

Art.  28.  In  all  other  cases  where  facts  material  to  the  decision  of  the 
cause  have  come  to  the  knowledge  of  the  judge,  and  he  is  not  specially 
authorized  to  act  on  such  knowledge,  he  must  state  the  facts  in  open 
court  under  oath,  and  is  liable  to  cross-examination  like  any  other  wit- 
ness. When  there  is  but  one  judge,  and  the  fact  is  to  be  tried  by  the 
court,  if  the  testimony  of  the  judge  is  necessary,  the  cause  shall  be  tried 
by  the  judge  of  an  adjoining  district  in  the  manner  provided  for  in  cases 
where  the  judge  is  interested. 

Art.  29:  Jurors  are  not  permitted  to  act  on  the  evidence  of  their  own 
knowledge.  Whatever  hai  come  to  the  knowledge  of  either  of  them, 
must  be  stated  under  oath  in  open  court. 


648  CODE  OF  EVIDENCE. 


TITLE  II. 


OF  TESTIMONIAL  EVIDENCE. 

Art.  30.  Rules  for  procuring  the  personal  attendance  or  the  writ- 
ten testimony  of  witnesses,  are  contained  in  the  Codes  of  Civil  and 
of  Criminal  Procedure.  This  chapter  directs  what  persons  may  be  pro- 
duced as  witnesses  :  to  what  points  they  may  be  examined,  and  the 
mode  of  conducting  the  examination. 


CHAPTER  I. 


What  persons  may  be  examined  as  witnesses. 

Art.  31.  The  only  persons  who,  under  all  circumstances,  are  ex- 
cluded from  giving  testimony  are: 

1.  Those  who  are  of  INSANE  MIND  at  the  time  of  examination. 

2.  Children  under  fourteen  years  of  age,   whose  faculties  do  not 
appear  to  be  sufficiently  developed,  to  receive  correct,  impressions  of 
the  fact  relative  to  which  they  are  interrogated,  to  relate  those  impress- 
ions correctly,  and  to  feel  the  obligation  of  doing  it  truly. 

Art.  32.  Whether  a  child  under  the  age  of  fourteen  has  attained  the 
intellectual  powers  required  by  the  preceding  article,  or  whether  the 
person  offered  as  a  witness  be  of  sane  mind  or  not;  must  be  determined 
by  those  who  are  to  decide  on  the  principal  fact  in  question  between 
the  parties,  and  to  come  to  such  determination,  they  must  examine  the 
person  who  is  offered  as  a  witness,  and  other  witnesses  if  it  be  deemed 
necessary.  If  the  trial  is  by  a  jury,  a  majority  shall  determine  whether 
a  witness  objected  to  for  either  of  these  causes  shall  be  examined. 

Art.  33.  The  circumstances  and  cases  in  which  certain  persons  other- 
wise permitted  to  testify,  are  excluded  from  giving  testimony,  are  the 
following : 

1.  A  slave  is  not  admitted  to  testify  in  any  case  but  one  in  which 
another  slave  is  prosecuted  for  some  offence  ;  but  the  declaration  of  a 
slave  is  received  as  a  complaint  in  the  manner  directed  by  the  Code  of 
Criminal  Procedure. 

2.  A  counsellor  or  attorney  at  law  shall  not  be  interrogated  to  dis- 
close any  fact  that  has  come  to  his  knowledge  by  communication  from 
his  client.     But  this  rule  is  subject  to  the  following  limitations  and 
explanations  :  viz. — It  shall  apply  only  to  facts  which  were  communi- 
cated to  the  counsellor  or  attorney  for  the  purpose  of  conducting  or 
defending  some  judicial  proceeding  pending,  or  apprehended.    It  shall 
not  apply  to  any  other  person  than  a  licensed  counsellor  or  attorney, 
although  the  purpose  of  the  communication  may  be  the  defence  or  pro- 
secution of  a  suit. 

3.  A  priest  of  the  Catholic  religion  shall  not  be  forced  to  reveal  any 
thing  which  he  knows  only  by  its  being  confided  to  him  in  religious 
confession  by  his  penitent. 


CODE  OF  EVIDENCE.  649 

CHAPTER  II.. 

Of  the  different  modes  of  taking  testimonial  evidence. 

Art.  34.  Testimonial  evidence  may  be  exhibited  in  three  different 
forms  : 

By  affidavit. 

By  oral  examination. 

By  written  deposition  or  interrogation. 

SECTION  I. 

Of  testimony  by  affidavit. 

Art.  35.  In  all  cases  in  which  the  affidavit  of  the  party  or  a  witness 
is  by  the  Code  of  Civil  or  Criminal  Procedure,  allowed  as  a  sufficient 
ground  for  the  issuing  of  any  process  order,  or  other  judicial  proceed- 
ing, the  party  making  such  affidavit  may  be  cross-examined  by  the 
party  opposed  in  interest  before  the  judge  of  the  court  from  which  such 
order  or  process  issues,  and  evidence  may  be  produced  to  disprove  the 
facts  stated  in  such  affidavit. 

Art.  36.  In  order  to  carry  the  preceding  article  into  effect,  if  no  in- 
justice will  in  that  particular  case  be  suffered  by  the  delay,  the  judge 
shall  require  reasonable  notice  to  be  given  to  the  opposite  party  of  the 
time  and  place  of  examination,  together  with  a  copy  of  the  affidavit 
before  the  order  or  process  shall  issue. 

Art.  37.  If  the  judge  shall  be  of  opinion  that  the  ends  of  justice  will 
be  defeated,  by  delay  or  by  giving  the  notice  required,  he  may,  if  the 
proof  warrants  it,  give  the  order  required  ;  but  shall,  at  a  proper  time, 
cause  the  notice  required  by  the  last  article  to  be  given,  and  if  by  the 
cross-examination  of  the  deponent  or  the  production  of  opposite  proof, 
the  alleged  facts  shall  be  disproved,  the  order  shall  be  rescinded,  and 
the  party  who  has  obtained  it  shall  pay  the  costs  and  damages  sustained 
by  the  other  party  in  consequence  thereof,  to  be  awarded  by  the  court, 
or  by  a  jury  if  either  party  require  it.  V 

Art.  38.  Notice  shall  be  given  to  every  person  making  an  affidavit, 
or  swearing  to  the  truth  of  any  pleading  or  paper  whatever  to  be  used 
in  any  judicial  proceeding,  before  the  oath  is  administered,  that  he  will 
be  liable  to  cross  examination,  and  that  he  subjects  himself  to  the  pen- 
alty of  perjury  if  the  statement  be  designedly  false  ;  and  the  magis- 
trate who  administers  the  oath  shall  give  such  notice  and  insert  in  the 
certificate  of  attestation  the  words  "  after  the  notice  required  by  law," 
or  words  to  that  effect,  under  the  penalties  prescribed  by  law  for  a 
neglect  of  duty. 

Art.  39.  It  is  the  duty  of  every  magistrate  who  shall  administer  the 
oath  of  attestation  to  any  affidavit,  to  inquire  of  the  deponent  whether 
he  has  read  the  same  ;  and  if  the  answer  be  that  he  has  not,  or  can- 
not read,  then  to  cause  him  to  read,  or  to  have  it  read  to  him  distinctly, 
and  after  giving  the  notice  required  by  the  last  article,  to  cause  him  to 
sign  his  name,  if  he  can  write,  and  if  he  cannot,  then  to  make  a  mark 
4  G 


650  CODE  OF  EVIDENCE. 

at  the  foot  of  the  said  affidavit,  opposite  to  which  the  magistrate  shall 
write  the  name  of  the  deponent. 

Art.  40.  The  oath  or  affirmation  to  all  affidavits  shall  be  according 
to  the  form  prescribed  by  "the  Code  of  Procedure,  with  additions  re- 
quired by  this  section. 


SECTION  II. 

Of  (he  examination  and  attestation  of  those  who  are  parties  to  judicial  proceedings  in  civil 

causes. 

Art.  41.  All  fictions  being  expressly  discarded  from  the  judicial  pro- 
ceedings of  this  state,  no  party  to  a  suit  shall  be  permitted  to  make 
any  allegation  of  fact  in  a  court  of  justice  of  which  he  is  not  willing 
to  declare  his  knowledge  or  belief  under  oath.  Therefore,  all  peti- 
tions, or  answers  intended  to  be  used  in  any  suit,  and  containing  any 
allegation  of  fact,  or  the  belief  of  any  .fact  by  the  party  in  the  suit  on 
\vhose  behalf  such  petition  or  answer  shall  be  exhibited,  shall  be  sworn 
to  in  the  form  prescribed  for  affidavits  by  the  preceding  section,  and 
the  same  notice  shall  be  given  that  the  party  is  liable  to  cross  examin- 
ation and  the  penalties  of  perjury  in  case  of  wilful  falsehood. 

Art.  42.  In  addition  to  the  discovery  directed  to  be  mutually  furnish- 
ed by  the  parties  in  answer  to  interrogatories,  as  provided  by  the  laws 
regulating  the  practice  of  the  courts  in  civil  cases,  (or  in  lieu  thereof) 
any  party  to  a  suit  may  summon  another  party  or  any  one  having  an 
adverse  interest  and  being  within  the  state,  to  attend  the  trial  in  order 
to  be  examined  touching  the  matters  in  controversy;  and  if  such  party 
be  not  within  the  state,  or  do  not  attend,  the  same  proceedings  shall 
be  had  either  to  procure  the  deposition  of  the  said  party,  or  to  put  off 
the  trial,  as  are  directed  with  respect  to  witnesses  who  are  absent  or 
refuse  to  attend. 

Art.  43.  The  deposition  of  any  party  to  the  pleadings,  or  his  an- 
swers to  interrogations  or  on  oral  examination  in  court,  shall  have  no 
other  force  than  the  judge  or  jury  who  try  the  fact  shall  deem  it  enti- 
tled to  ;  therefore,  that  part  of  the  presen-t  law  which  directs  that  to 
countervail  such  testimony  drawn  from  the  party,  the  oath  of  two  wit- 
nesses, or  of  one  witness  with  circumstantial  evidence  shall  be  necessary, 
is  repealed. 

Art.  44.  In  every  trial  where  the  parties,  or  either  of  them,  have 
appeared,  whether  in  pursuance  of  such  provisions  or  not,  he  or  they, 
at  the  request  of  the  opposite  party,  or  of  any  juror,  or  by  direction 
of  the  judge  for  his  own  satisfaction,  may  be  sworn  to  answer  such  pro- 
per questions  as  shall  be  put  to  him  or  them  relative  to  the  matter  in 
dispute. 

Art.  4*5.  On  the  trial  of  any  cause,  if  the  judge  pr  a  majority  of  the 
jury  shall  deem  it  necessary  to  form  a  true  decision  after  hearing  the 
testimony,  that  any  party  not  present  shall  be  examined,  the  trial  shall, 
at  the  discretion  of  the  court,  be  postponed,  and  the  usual  measures 
taken  for  obtaining  the  attendance  or  the  deposition  of  the  party  upon 
interrogatories,  to  the  point  deemed  to  be  important  by  the  judge  or 
the  jury  as  aforesaid.  All  questions  pertinent  to  the  matter  in  dispute 
may  be  put  to  a  party  examined  in  the  manner  aforesaid,  which  might 
be  put  to  a  witness. 


CODE  OF  EVIDENCE.  651 

Art.  46.  When  any  party  to  a  suit  shall  be  examined  in  pursuance 
of  the  provisions  of  this  section,  the  same  rules  shall  be  observed  for 
conducting  the  examination  as  are  laid  down  for  the  examination  of 
witnesses  by  the  third  section  of  this  chapter. 

Art.  47.  This  section  relates  exclusively  to  civil  causes. 


SECTION  III. 

To  what  points  and  in  what  manner  witnesses  may  be  examined. 

Art.  48.  If  the  witness  be  a  Catholic  priest,  he  shall  not  be  interro- 
gated for  the  purposes  of  revealing  any  thing  that  has  been  confided  to 
him  by  confession  ;  but  he  may  be  examined  as  to  knowledge  obtained 
from  any  other  source. 

Art.  49.  The  counsellor  or  attorney  employed  by  the  defendant  or 
assigned  to  him  by  the  court,  shall  not  be  interrogated  for  the  purpose 
of  revealing  any  thing  that  he  knows  only  by  its  being  communicated 
to  him  by  his  client  in  relation  to  the  cause  in  which  he  is  employed, 
and  for  the  purpose  of  conducting  or  defending  the  same,  or  for  the  pur- 
pose of  procuring  professional  advice  on  some  lawful  occasion.  What 
he  knows  in  any  other  manner,  although  it  may  also  have  been  com- 
municated by  his  client,  or  what  he  knows  by  communication  from  his 
client,  before  he  became  his  counsellor  or  attorney,  or  at  any  time,  if 
the  fact  so  communicated  have  no  relation  to  the  cause  or  matter  in 
which  it  was  communicated  to  him,  he  shall  be  obliged  to  declare 
whenever  the  question  is  otherwise  pertinent. 

Art.  50.  If  it  should  become  material  in  any  stiit  to  require  informa- 
tion of  a  fact,  which  it  would  be  dangerous  to  the  public  safety  to  dis- 
close at  the  time  of  trial,  this  is  a  good  cause  for  postponing  the  trial 
until  such  danger  shall  cease. 

Art.  51.  No  witness  shall  be  obliged  to  answer  any  questions  but 
such  as  are  immediately  pertinent  to  the  issue  between  the  parties,  or 
which  may  elucidate  or  establish  some  incidental  fact  necessary  to  be 
inquired  into  in  the  cause.  Questions  as  to  the  character  of  a  witness, 
and  questions  which,  though  unconnected  with  the  merits  of  the  case, 
may  be  put  to  lest  the  veracity  of  a  witness,  are  examples  of  such  in- 
cidental inquiry.  But  of  the  pertinency  of  any  question,  the  court,  in 
its  discretion,  must  judge  according  to  the  circumstances  of  the  case. 

Art.  52.  The  constitution  having  provided,  "  that  in  criminal  pro- 
secutions the  accused  shall  not  be  compelled  to  give  evidence  against 
himself,"  the  legislature  feel  themselves  bound  to  extend  the  same  pro- 
tection to  witnesses  in  all  cases,  and  to  declare,  that  no  witness  shall  be 
compelled  to  answer  any  interrogatory,  if  the  answer  he  would  give, 
would  furnish  evidence  to  justify  a  prosecution  against  him  for  a  CRIME. 

Art.  53.  With  the  exceptions  contained  in  the  five  last  preceding 
articles,  and  the  restrictions  hereafter  put  upon  leading  questions,  all 
other  interrogatories  may  be  put  to  any  witness. 

Art.  54.  The  rule  that  no  one  shall  discredit  his  own  witness,  is 
abolished.  The  party  calling  a  witness  may  cross-examine  him  to  test 
his  veracity,  and  call  witnesses  to  his  character  in  the  same  manner  as 
if  he  had  not  been  called  at  his  instance. 

Art.  55.  Leading  questions  are  not  permitted  to  be  put.  Such  only 
shall  be  deemed  leading  questions  as  suggest  to  the  witness  some  state- 


652  CODE  OF  EVIDENCE. 

ment  (inconsistent  with  the  truth,)  which  the  party  proposing  the 
question  wishes  to  prove.  This  is  a  matter  left  to  the  sound  discretion 
of  the  court.  But  it  must  be  so  exercised  as  not  to  present  suggestions 
necessary  to  recall  the  facts  in  question  to  the  memory  of  the  witness, 
when  the  transaction  is  remote,  when  from  its  nature  it  was  not  likely 
to  have  made  a  strong  impression  on  the  mind  of  the  witness,  or  when 
from  age  or  indisposition,  timidity,  or  other  cause,  the  mind  of  the 
witness  is  weakened  or  disturbed. 

Art.  56.  The  witness  may,  on  his  examination,  refer  to  written 
notes  made  by  himself  or  by  his  direction}  for  the  purpose  of  refresh- 
ing his  memory  as  to  events  mentioned  in  them  ;  he  may  refer  to 
writings  made  by  others  for  the  same  purpose;  but  in  that  case  he  must 
speak  from  his  own  recollection  of  the  fact,  thus  revived  by  the  writ- 
ing; not  from  the  evidence  of  the  writing  itself;  and  he  must  in  all  cases 
declare  when,  and  by  whom,  and  for  what  purpose,  the  writing  to  which 
he  refers,  was  made  ;  and  he  shall  not  be  permitted  to  refer  to  them 
if  they  appear  to  have  been  made  by  either  of  the  parties  in  the  suit,  or 
by  their  direction,  for  the  purpose  of  suggesting  to  the  witness  what 
he  ought  to  say. 

Art.  57.  In  all  cases  where  a  witness  is  examined  to  prove  or  dis- 
prove any  matter  of  account  Or  calculation,  he  must  be  permitted  to 
refer  to  the  papers  or  books  containing  such  account  or  calculation. 

Art.  58.  It  is  the  duty  of  the  judge  to  prevent  any  harsh  or  threat- 
ening language  to  be  used  towards  a  witness  for  the  purpose  of  confu- 
sing or  intimidating  him.  Reasonable  time  shall  be  given  to  the 
witness  to  recollect  himself  before  he  is  urged  to  answer.  After  his 
testimony  has  been  given,  he  may  rectify  any  mistake  in  his  answers, 
within  a  like  reasonable  time,  to  be  judged  of  by  the  court. 

Art.  59.  Whenever  the  testimony  of  a  witness  is  reduced  to  writ- 
ing, he  may,  before  signing  it,  correct  any  inaccuracies  which  may 
have  been  made  in  reducing  it  to  writing,  or  any  error  which  he  may 
himself  have  made  ;  and  such  correction  may  be  made  even  after 
signing  the  deposition,  within  a  reasonable  time,  to  be  judged  of  ac- 
cording to  circumstances  by  the  court." 

Art.  60.  He  -who  judicially  alleges  a  litigated  fact,  must  produce 
evidence  to  support  it,  whether  it  be  a  fact  in  charge  or  discharge. 

Art.  61.  No  fact  judicially  alleged  by  one  party  and  in  the  same 
manner  confessed  by  the  other,  need  be  proved  by  other  evidence. 

Art.  62.  A  fact  judicially  alleged  by  one  party  and  neither  con- 
fessed nor  denied,  by  the  other,  must  be  pro.ved  by  the  alleging 
party  ;  but  the  oath  of  the  party  alleging,  shall  be  presumptive  evi- 
dence, to  have  such  weight  as  the  judge  or  jury,  to  whichever  the 
fact  is  submitted,  may  think  it  deserves. 

Art.  63.  The  evidence  required  by  the  preceding  articles,  is  any 
of  the  several  kinds  specified  in  the  Code  as  legal  evidence. 

Art.  64.  The  judicial  allegation  above  mentioned  means  the  affir- 
mative declaration  made  in  the  course  of  written  judicial  proceeding, 
that  a  fact  or  state  of  things  exists  or  has  happened,  on  which  the  one 
party  relies  to  support  his  charge,  or  the  other  to  exonerate  himself 
from  it.  An  affirmative  assertion  of  innocence  amounts  only  to  a 
negation  of  a  charge  made,  and  is  not,  therefore,  such  an  affirmative 
declaration  as  the  party  making  it  is  bound  to  support  by  proof. 

Art.  65.  The  rule  of  evidence  which  required  that  the  best  evidence, 
or  as  it  is  sometimes  stated,  the  best  attainable  evidence,  shall  be  pro- 


CODE  OF  EVIDENCE.  653 

duccd,  shall  hereafter  operate  to  the  exclusion  of  other  evidence  only 
in  the  following  cases  : 

1.  When  the  law  shall  have  declared  that  to  give  validity  to  a  con- 
tract, it  shall  be  made  in  writing,  no  other  proof  shall  be  admitted  of 
such  contract,  unless  it  be  proved  that  the  writing  required  by  law 
was  made,  and  that   it  has  been  casually  lost  or  destroyed,  or  has 
been  placed,  without  the  default  of  the  party  offering  the  inferior  evi- 
dence, out  of  his  reach. 

2.  When  it  is  proved  that  SCRIPTORY  EVIDENCE  of  the  matter  in 
question  has  been  made,  and  was  in  possession  of  the  party  offering 
the  inferior  proof,  unless  he  show  that  it  has  been  casually  lost  or  de- 
stroyed, or  without  his  default  has  been  placed  out  of  his  reach.  • 

3.  When  the  legislature  shall  have  declared  certain  evidence  neces- 
sary for  the  proof  of  designated  facts. 

4.  When  the  fact  alleged  is  one  which,  if  true,  must  have  appeared 

by  AUTHENTIC  ACT. 

Art.  66.  In  all  other  cases  where  evidence  is  offered,  which  the 
judge  or  jury  shall  deem  of  an  inferior  nature  to  other  evidence  which  is 
not  produced,  such  inferior  evidence,  if  legal,  shall  be  admitted,  and  the 
non-production  of  the  other  shall  operate  only  as  presumptive  proof 
against  the  party  failing  to  produce  it,  to  have  such  effect  as  such 
judge  of  the  fact  shall,  according  to  circumstances,  give  to  it. 

Art.  67.  In  all  cases  where  a  writing  is  proved  to  be  in  the  possess- 
ion of  the  opposite  party,  who,  on  proper  notice  being  given,  does  not 
produce  it,  evidence  may  be  given  of  its  contents. 

Art.  68.  The  rule  established  by  the  Civil  Code,  that  parol  evidence 
shall  not  be  admftted  against  or  beyond  what  is  contained  in  the  acts, 
nor  what  may  have  been  said  before  or  at  the  time  of  making  them, 
is  to  be  taken  with  the  following  modifications  : 

1.  It  applies  exclusively  to  writings,  containing  obligations  or  dona- 
tions, and  to  testamentary  dispositions. 

2.  Parol  evidence,  in  all  cases  of  written  instruments,  shall  be  ad- 
mitted to  prove  error,  fraud,  violence,  threats,  or  any  other  circum- 
stance which,  by  the  Civil  Code,  would  avoid  or  modify  a  contract. 

3.  It  may  be  admitted  to  remove  any  ambiguity,  whether  apparent 
on  the  face  of  the  instrument,  or  arising  out  of  the  application  of  its 
terms. 

,4.  Any  one  of  the  parties  to  a  written  instrument  may  be  called  on 
by  another  to  explain,  on  oath,  either  by  parol  evidence  on  the  trial, 
or  by  answer  to  interrogatories,  at  the  option  of  the  party  making  the 
inquiry,  any  point  in  litigation  between  them,  arising  out  of  such 
instrument,  and  that,  whether  the  interrogation  goes  to  contradict, 
explain,  or  add  to,  or  diminish  the  obligation  specified  in  the  writing. 

Art.  69.  Whenever  error,  fraud,  violence,  or  threats  are  alleged 
as  reasons  for  setting  aside  a  contract,  the  following  points  must  be 
inquired  into  by  the  judge,  and  considered,  if  he  is  to  decide  or  give 
in  charge  to  the  jury,  in  addition  to  the  evidence  of  the  direct  fact 
alleged. 

1.  If  error  is  the  reason  alleged,  the  character  as  to  caution  and  pru- 
dence in  conducting  his  affairs,  of  the  party  alleging  that  he  was  de- 
ceived ;   his  knowledge  of  the  particular  business  which  formed  the 
subject  of  the  contract ;  the  deliberation  or  haste  with  which  it  was 
effected. 

2.  If  the  objection  be  fraud,  violence,  or  threats,  the  character  of 


654  CODE  OF  EVIDENCE. 

both  parties  must  be  the  subject  of  inquiry,  as  presumptive  evidence 
of  the  fraudulent  or  violent  practices  on  the  one  side,  or  of  a  submis- 
sion to  them  on  the  other. 

-  3.  In  all  cases  of  this  kind,  the  time  that  has  elapsed  after  the  error 
or  fraud  was  discovered,  or  the  violence  or  threats  had  ceased,  before 
the  proceedings  were  had,  or  complaint  made  for  redress,  and  the  rea- 
son for  the  delay,  if  any. 

Art.  70.  Parol  evidence  is  not  admitted  unless  the  witness  be  under 
the  sanction  of  an  oath.  Therefore  the  witness  is  only  to  be  inter- 
rogated as  to  his  own  knowledge  or  belief,  and  not  as  to  what  he  has 
heard  from  others,  upon  whom  none  of  the  sanctions  to  secure  veracity 
could  operate.  This  is  a  general  rule,  to  which  there  are  the  follow- 
ing exceptions  : 

1.  A  witness  may  declare  what  a  party  has  said,  if  the  testimony 
be  called  for  by  the  opposite  party  ;  and  this  extends  not  only  to  the 
declarations  of  the  actual  parties  to  the  suit,  but  those  of  the  persons 
under  whom  they  claim ;   and  also  to  the  declarations  of  such  agents 
or  other  persons  as  could  have  bound  them  by  their  contracts  in  the 
matters  in  contest ;    but  no  declaration  of  one  under  whom  the  party 
claims  shall  be  given  in  evidence  unless  it  was  made  while  such  per- 
son was  interested,  or  of  the  agent  except  while  he  was  in  the  employ 
of  the  party. 

2.  What  has  been  said  relative  to  the  matter  in  dispute  by  others, 
in  the  presence  and  hearing  of  one  party  to  the  suit,  may  be  given 
in  evidence  by  the  other  as  a  foundation  for  presumption  to  be  drawn 
from  what  was  said  or  done  by  the  party,  or  from  his  silence  ;    but  in 
all  such  cases  the  party  implicated  may  require  that'  he  be  allowed  to 
explain  upon  oath. 

3.  What  a  witness  has  said  before  he  was  sworn,  may  be  shown  to 
prove  that  it  was  consistent,  or  inconsistent,  with  his  declaration  on 
oath. 

4.  What  a  witness  has  declared  on  a  former  trial  between  the  same 
parties  for  the  same  cause,  if  the  witness  be  dead,  or  his  testimony 
cannot  be  procured. 

5.  When  the  declarations  of  a  party,  or  a  witness,  are  admitted 
under  the  first  or  second  exceptions  above  mentioned,  any  thing  said 
by  another  person  in  the  same  conversation,  which  is  necessary  to 
counteract  or  explain  what  was  said  by  such  party  or  witness  may  be 
given  in  evidence. 

6.  Proof  of  the  hand-writing  of  a  subscribing  witness  to  an  instru- 
ment who  is  absent  or  dead,  may,  in  certain  cases,  be  admitted  on  the 
presumption  that  he  would  not  have  signed  if  he  could  not  prove  the 
execution.     To  rebut  this  presumption,  any  material  declaration  of  such 
witness  may  be  given  in  evidence. 

7.  In  cases  not  depending  on  scriptory  evidence,  a  party  may  give  as 
evidence  what  he  himself  said  or  did  in  relation  to  the  matter  in  litiga- 
tion at  the  time  of  the  transaction  on  which  it  is  founded,  in  order  to 
explain  the  intention  with  which  any  thing  was  said  or  done,  that  he  is 
charged  with  in  the  proceedings  or  by  the  evidence  ;  but  in  this  case 
he  may  himself  be  examined  under  oath  by  the  adverse  party. 

Art.  71.  When  the  fact  inquired  of  is  one  of  which  the  knowledge  is 
generally  acquired  by  information  of  others,  or  by  information  joined 
to  personal  observation,  forming  what  is  usually  called  facts  of  public 
notoriety,  they  may  be  stated  on  such  information  by  parol  evidence  : 


CODE  OF  EVIDENCE.  655 

of  this  nature  are — pedigree,  boundary}  births  and  deaths,  cohabitation, 
residence,  profession  or  trade,  possession  with  reputation  of  ownership, 
general  reputation,  custom,  course  of  trade,  prescription,  public  histo- 
rical events.  In  all  these  cases,  and  others  of  the  same  description,  the 
witness  may  testify,  not  only  as  to  the  public  notoriety  of  the  fact,  but 
may  specify  the  persons  from  whom  he  has  derived  his  information. 

Art.  72.  What  a  person,  who  is  dead  at  the  time  of  trial,  has  said  or 
done  in  relation  to  the  subject  in  controversy,  may  be  given  in  evidence, 
if  such  act  or  declaration  was,  at  the  time  of  making  it,  contrary  to  his 
pecuniary  interest. 

Art.  73.  In  prosecutions  for  homicide,  the  deposition  of  the  deceased 
may  be  given  in  evidence,  or  what  he  was  heard  to  say  after  receiving 
the  wound,  if  he  do  not  live  long  enough  to  have  his  deposition  taken, 
or  if  circumstances  prevent  its  being  taken. 


SECTION  IV. 

Of  evidence  to  the  character  of  parties  and  witnesses. 

Art.  74.  In  all  criminal  prosecutions  the  general  character  of  the 
party  accused  may  be  shown  by  evidence,  but  to  such  points  only  as 
would  evince  a  disposition  or  indisposition  to  commit  the  offence  with 
which  he  is  charged.  Thus,  if  the  prosecution  be  for  a  battery,  the  de- 
fendant may  show  that  his  general  reputation  is  that  of  mildness  and 
forbearance;  and  on  the  part  of  the  prosecution,  the  reverse  may  be 
proved. 

Art.  75.  The  general  character  of  witnesses  for  veracity,  or  the  con- 
trary, may  be  also  shown,  both  on  the  part  of  those  who  introduce  them 
and  on  the  opposite  part. 

Art.  76.  Evidence  of  general  character  may  be  introduced  to  discredit 
a  witness,  by  showing  that  he  is  habitually  addicted  to  any  vice  that 
evinces  a  disregard  to  moral  character  j  such  as  intoxication,  or  that  he 
is  a  common  vagrant ;  or  if  the  witness  be  a  woman,  that  she  is  a  com- 
mon prostitute. 

Art.  77.  Particular  facts  may  also  be  given  in  evidence  ;  but  they 
must  be  of  a  public  and  notorious  nature,  such  as  conviction  for  a  CRIME  ; 
but  this  must  be  proved,  either  by  the  production  of  the  records  or  the 
oath  of  the  witness  himself ;  or  if  the  conviction  took  place  out  of  the 
state,  by  testimonial  proof. 

Art.  78.  All  facts  which  would  show  the  incapacity  of  the  witness, 
either  to  perceive  accurately,  or  correctly  to  relate,  what  he  states,  may 
also  be  shown  ;  such  as  a  natural  imperfection  in  any  of  the  senses, 
want  of  memory  or  of  skill,  usual  inattention  to  subjects  of  the  nature 
of  that  in  question,  or  general  ignorance  of  them,  or  a  temporary  disa- 
bility arising  from  disease  or  intemperance. 

Art.  79.  Any  particular  bias,  arising  from  interest,  affection,  relation- 
ship, from  fear,  enmity,  favour,  or  affection,  or  intimate  friendship  to 
or  with  either  of  the  parties,  or  having  had  disputes  with  them,  or  being 
under  their  control  or  influence  in  the  relation  of  ward,  servant,  tenant, 
debtor,  or  obligated  by  past  favours. 

Art.  80.  The  examinations  of  the  witnesses,  taken  before  the  examin- 
ing magistrate,  may  be  produced  to  contradict  what  they  may  say  on 
the  trial,  or  to  show  that  they  have  been  consistent. 


656  CODE  OF  EVIDENCE. 

Art.  81.  The  depositions  of  such  witnesses,  taken  in  the  presence  of 
the  defendant,  pursuant  to  the  directions  of  the  Code  of  Criminal  Pro- 
cedure, may  be  read  as  evidence,  if  the  witness  is  since  dead  or  cannot 
be  found  in  the  state. 

Art.  82.  The  examination  of  the  defendant,  taken  before  the  examin- 
ing magistrate,  if  made  according  to  the  directions  of  the  Code  of 
Criminal  Procedure,  may  also  be  produced. 


SECTION  V. 
Of  written  depositions  on  interrogatories. 

Art.  83.  All  the  rules  for  receiving  the  oral  declarations  of  witnesses, 
apply  to  their  examination  taken  in  writing  on  interrogatories. 

Art.  84.  When  the  oral  testimony  of  witnesses  is  taken  down  in 
writing,  in  the  cases  provided  by  law  for  regulating  the  practice  of  the 
courts,  the  question  shall  be  taken  down  as  well  as  the  answer,  and  the 
answer  recorded  as  it  is  given. 


TITLE  III. 


OF  SCRIPTORY  EVIDENCE. 
Art.  85.  Scriptory  evidence  is  of  two  kinds — AUTHENTICATED  and 

UNAUTHENTICATED. 


CHAPTER  I. 

Of  authenticated  acts. 

SECTION  I. 

Of  the  different  kinds  of  authenticated  acts. 

Art.  86.  Authenticated  acts  are  such  instruments  in  writing  as  are 
attested  by  a  public  officer,  legally  authorized  for  that  purpose,  in  the 
form  prescribed  by  law.  They  are  evidence  of  that  which  is  attested 
to  have  been  done  in  his  presence  by  the  officer  whose  attestation  gave 
them  validity  ;  but  of  nothing  more. — Thus,  the  joint  attestation  of  the 
speaker  of  the  house  of  representatives,  of  the  president  of  the  senate, 
and  of  the  governor,  is  authentic  evidence  that  a  bill  has  become  a  law 
of  the  state.  The  attestation  of  the  governor  and  secretary  of  state, 
under  the  seal  of  the  state,  is  authentic  evidence  that  the  copy  to  which 
it  is  affixed  is  a  true  copy  of  the  statute.  The  signature  of  the  governor 
to  a  proclamation  issued  by  him,  under  the  seal  of  office,  to  apprehend 
a  person  accused  of  murder,  is  authentic  evidence  that  such  proclama- 
tion was  issued  on  the  day  it  bears  date,  that  complaints  were  made  to 


CODE  OF  EVIDENCE.  657 

him  of  the  commission  of  the  crime  and  of  the  flight  of  the  defendant, 
or  of  any  other  fact  which  he  certifies  to  have  been  done  in  his  presence  ; 
but  it  is  not  evidence  that  the  crime  was  committed  or  that  the  party  fled. 

Art.  87.  They  are  of  several  kinds  : 

1st.  Legislative  acts,  passed  by  the  constitutional  authority,  and 
attested  in  the  manner  prescribed  by  law. 

2d.   Records  of  courts. 

3d.  Such  records  of  the  different  branches  of  the  executive  government 
as  are  made  in  the  legal  administration  of  their  different  departments, 
and  as  are  declared  to  be  authentic  acts. 

4th.  Written  instruments,  made  in  the  presence  of  and  attested  by 
such  public  officer,  as  is  for  that  purpose  commissioned  according  to 
law,  and  purporting  to  testify  what  is  said,  done,  or  contracted,  by  those 
whose  act  it  is. 


SECTION  II. 
Of  legislative  acts. 

Art.  88.  Legislative  acts  are  proved,  either  by  a  production  of  the 
original  act  deposited  in  the  archives  of  the  state ;  by  a  copy  attested 
by  the  signature  of  the  person  exercising  the  executive  authority  of  the 
state,  and  by  the  secretary  of  state,  cr  other  proper  officer  having  the 
custody  of  the  said  archives,  under  the  seal  of  the  state  ;  or,  by  the 
printed  copy  contained  in  the  statute  book,  or  the  gazette  printed  by 
the  printer  of  the  state.  Provided,  that  on  the  production  of  either  of 
the  said  copies  of  a  legislative  act,  it  shall  be  lawful  for  any  party, 
alleging  a  mistake  in  the  printed  or  other  copy,  to  prove  it  by  pro- 
ducing the  copy  under-the  seal  of  the  state,  or  in  such  attested  copy, 
by  collating  it  with  the  original  archives,  and  procuring,  in  this  last 
case,  a  correction  of  the  attested  copy;  but  the  party  alleging  such  mis- 
lake  must  prove  it ;  and,  until  the  error  be  shown,  such  copy  shall  be 
deemed  a  true  one,  and  shall  have  its  full  and  entire  effect. 

Art.  89.  There  is  no  distinction  in  the  mode  of  proof  between  public 
and  private  legislative  acts.  The  court,  however,  is  bound  to  take 
notice  of  and  carry  into  effect  all  public  acts  which  apply  to  the  facts 
before  them,  whether  they  are  pleaded  or  offered  in  evidence  or  not ; 
but  a  party  claiming  a  right  or  exemption,  under  a  private  act,  must 
produce  it. 

Art.  90.  A  private  legislative  act  is  one  that  concerns  certain  desig- 
nated individuals  only.  All  other  legislative  acts  are  public. 

Art.  91.  All  acts  of  incorporation  made  for  regulating  the  police  or 
local  government  of  any  particular  part  of  the  state,  for  the  establish- 
ment of  banks,  for  authorizing  the  imposition  of  a  toll,  tonnage,  wharfage, 
or  other  duty,  for  the  establishment  of  hospitals,  or  other  purposes  of 
charity,  or  for  the  promotion  of  education,  religion,  or  science,  are 
public  acts.  All  other  acts  of  incorporation  are  private  acts. 

Art.  92.  The  enumeration  contained  in  the  last  article  relates  solely 
to  the  purpose  of  this  title:  it  does  not  affect  the  nature  or  definition  of 
corporations  established  by  law. 


4   II 


658  CODE  OF  EVIDENCE. 


SECTION  III. 

Of  judicial  records. 

Art.  93.  Judicial  records  are  all  the  written  proceedings  in  a  court 
legally  constituted  and  directed  to  record  its  decrees.  They  compre- 
hend, not  only  the  orders  and  judgments  of  such  courts,  but  the  written 
pleadings  and  allegations  of  parties;  the  proofs  and  documents  they  have 
produced,  when  the  same  are  made  part  of  the  written  proceedings;  and 
the  certificates  and  returns  of  the  officers  of  such  courts  ;  the  verdict  of 
jurors,  and  all  other  proceedings,  which  are  entered  on  the  minutes  or 
preserved  among  the  records  of  such  court. 

Art.  94.  Judicial  records  of  courts,  within  this  state,  are  proved  by 
a  production  of  the  original  record,  or  by  a  copy  attested  to  be  a  true 
copy  by  the  clerk  of  such  court,  under  the  seal  of  the  same,  to  which 
must  be  annexed  a  certificate  signed  by  the  presiding  judge  of  such 
court,  declaring  that  the  person  who  has  attested  the  same  is  clerk  of 
such  court;  but  any  error  or  omission  in  such  copy  may  be  rectified  by 
a  collation  with  the  original  record  ;  but,  unless  such  error  be  shown, 
the  copy  is  a  conclusive  evidence.  All  records  from  other  states,  must 
be  authenticated  in  the  manner  directed  by  the  laws  of  the  United 
States,  in  order  to  be  received  as  proof  in  this  state.  Legislative  acts 
from  other  states,  may  be  proved  by  the  production  of  such  printed 
statute  books  as  are  proved  to  be  received  in  the  courts  of  such  state. 

Art.  95.  Records  of  judgments  on  proceedings  in  foreign  countries, 
other  than  the  states  of  the  Union,  are  proved  by  the  certificate  of 
officers,  whose  duty  it  is,  by  the  laws  of  the  country  in  which  such  court 
is  situated,  to  give  such  certificates,  together  with  such  other  attestation 
as  is  required  by  the  laws  of  such  country,  to  make  such  copy  evidence 
in  other  courts  of  the  same  country;  which  fact,  to  wit,  that  the  attesta- 
tion is  in  such  form,  must  be  certified  by  the  minister  for  the  proper 
department  of  such  government,  and  his  signature  and  office  must  be 
certified  by  the  minister  of  the  United  States,  if  there  be  one  in  such 
country;  or,  if  there  be  none,  by  some  consul  of  the  United  States  for 
that  district  of  such  country  in  which  the  decree  was  given,  under  his 
hand  and  consular  seal;  and  in  countries  where  there  is  neither  Ameri- 
can minister  nor  consul,  the  substance  of  such  certificate  must  be  proved 
by  two  witnesses,  examined  on  commission  or  in  open  court. 

Art.  96.  Whenever  a  foreign  judgment  is  made  the  foundation  of  a 
suit  or  of  a  defence,  and  the  party  wishes  to  produce  the  copy,  whether 
authenticated  in  the  manner  set  forth  in  the  last  preceding  article  or 
only  by  the  certificate  of  the  clerk  or  judge,  he  must,  at  the  time  he 
files  his  petition  or  answer,  deposit  in  the  court  the  said  copy,  and  give 
notice  to  the  opposite  party  that  he  intends  to  produce  such  copy  in 
evidence  ;  and  if  the  opposite  party  shall,  within  ten  days,  give  notice, 
in  writing,  that  he  will  oppose  the  introduction  of  such  copy,  then  the 
party  offering  the  same  must  prove  such  record  by  an  examination  of 
the  proper  officer  on  a  commission  ;  but,  in  such  case,  all  reasonable 
expenditures,  made  in  the  execution  of  such  commission,  whatever  may 
be  the  event  of  the  suit,  shall  be  borne  by  the  party  opposing  the 
introduction  of  the  copy;  provided  such  copy  should,  by  the  return  to 
the  commissioner,  be  proved  to  have  been  complete  and  correct.  But 


CODE  OF  EVIDENCE.  659 

i 

if  no  such  notice  of  opposition  be  given,  the  copy  certified  as  aforesaid 
shall  be  evidence  of  such  judgment. 

Art.  97.  If  such  foreign  judgment  be  not  the  foundation  of  the  suit, 
or  of  the  defence,  but  may  be  necessary  to  be  produced  on  some  col- 
lateral point  arising  in  the  cause,  then  the  copy,  authenticated  as  is 
beforementioned,  must  be  deposited  at  least  fifteen  days  before  the  day 
appointed  for  the  trial  of  the  cause  ;  and  notice  must  be  given  as  is  set 
forth  in  the  last  preceding  article,  and  the  same  proceedings  must  be 
had  by  the  parties  as  is  provided  for  in  the  said  article. 

Art.  98.  Nothing  in  the  preceding  articles  shall  prevent  the  admis- 
sion of  the  copy  of  any  foreign  record,  certified  by  the  recording  officer 
of  the  court  in  which  it  was  given  and  by  the  judge,  as  itself  good 
evidence  when  proved  to  be  a  true  copy  by  the  oath  of  a  competent 
witness,  taken  according  to  law,  who  has  collated  it  with  the  original. 

Art.  99.  As  evidence,  a  judgment  rendered  in  either  of  the  United 
States,  or  in  a  foreign  country,  has  the  same  effect,  and  is  subject  to  the 
same  rules,  as  are  established  in  the  section  on  resjudicata  for  judg- 
ments rendered  in  this  state  ;  but  no  judgment  rendered  in  any  court 
whatever,  in  a  suit  in  rem,  whether  by  attachment  or  otherwise,  shall 
have  any  other  of  the  effects  of  the  resjudicata,  except  so  far  as  respects 
the  thing,  the  seizure  whereof  was  the  first  process  in  the  cause;  unless 
the  party  appeared  and  defended  such  suit,  either  in  person  or  by 
attorney. 

Art.  100.  If  the  only  object  be  to  prove  a  condemnation  in  a  foreign 
court  of  admiralty,  it  is  not  necessary  to  produce  copies  of  any  other 
part  of  the  proceedings  than  the  libel  and  the  final  decree  of  condemna- 
tion; and  none  of  the  evidence,  taken  in  such  court,  shall  be  evidence 
even  between  the  same  parties  to  prove  any  other  point  than  the  one 
in  contestation  in  the  original  cause. 


SECTION  IV. 
Of  records  of  Ihe  executive  branches  of  government. 

Art.  101.  The  following  are  the  acts  of  the  different  departments 
of  executive  government,  which  have  the  force  of  authentic  acts. 

1st.  Commissions,  or  special  authority  to  perform  any  civil  duty, 
<*iven  by  the  governor,  pursuant  to  law,  or  any  proclamation  issued 
by  him.  They  must  be  under  the  seal  of  the  state,  and  must  b'e  signed 
by  the  governor,  and  attested  by  the  secretary  of  state. 

2d.  Certificates  of  election  directed  by  law  to  be  given  to  persons 
chosen  to  fill  any  place  in  office,  signed  by  the  persons  who  are  au- 
thorized to  determine  the  result  of  such  election. 

3d.  Certificates  of  the  administration  of  oaths  of  office,  and  other 
oaths  necessary  to  be  taken  previous  to  the  performance  of  the  duties 
of  any  place  or  office,  signed  by  the  persons  authorized  to  administer 
such  oaths. 

4th.  Entries  in  the  proper  books  of  the  registry  and  cancelling  of 
mortgages.  Donations  and  other  acts  directed  by  law  to  be  registered, 
and  such  certificate  as  by  law  the  officer  appointed  to  make  such  regis- 
try, is  entitled  to  give. 

5th.  Entries  in  the  proper  book  of  the  registries  which   may  be 


660  CODE  OF  EVIDENCE. 

made  of  births,  baptisms,  marriages,  and  deaths,  by  any  officer  who  is 
or  may  be  appointed  by  law  to  enregister  the  same. 

The  commissions,  proclamations,  special  delegations  of  authority, 
certificates  of  election,  and  certificates  of  administration  of  oaths,  are 
themselves  the  original  authentic  acts  ;  and  those  given  by  the  proper 
officers  in  this  state,  and  in  the  form  prescribed  by  law,  need  no  addi- 
tional proof,  it  being  the  duty  of  all  judges  in  this  state,  ex  officio, 
to  know  the  seals  and  signatures  of  the  officers  whose  acts  they  pur- 
port to  be.  Where  the  original  of  these  acts  cannot  be  produced,  a 
copy  of  the  record  of  the  commission  or  certificate  of  election,  under 
the  seal  of  the  state,  certified  by  the  secretary  of  state,  is  authentic 
evidence.  With  respect  to  the  certificate  of  the  administration  of 
oaths  of  office,  if  the  original  cannot  be  produced,  the  fact  may  be 
proved  by  other  testimony,  which  may  be  or  may  not  be  authentic 
according  to  its  nature. 

Art.  102.  Entries  in  the  proper  books  of  the  register  of  mortgages, 
or  other  officers  appointed  to  enregister  any  description  of  acts  of  bap- 
tisms, marriages,  births,  or  deaths,  are  proved  by  the  official  certificates 
of  such  officer,  with  the  addition  of  his  seal  of  office  where  he  is  au- 
thorized to  keep  such  seal  ;  and  such  copy  is  an  authentic  act,  as  are 
also  all  such  official  certificates  as  he  is  by  law  authorized  to  give. 

Art.  103.  The  registry  of  a  mortgage,  or  of  any  other  act  which  is 
directed  to  be  registered  for  the  purpose  of  giving  notice  to  those  who 
may  be  interested,  or  the  authenticated  copy  of  such  registry,  is  not 
evidence  of  the  act  itself:  it  is  evidence  only,  that  the  law  which 
directs  the  registry  has  been  complied  with.  Therefore,  the  registry, 
or  an  authenticated  copy  of  it,  does  not  dispense  with  the  introduction 
of  the  act  itself,  or  other  legal  evidence  of  its  having  been  made. 


SECTION  V. 

Of  notarial  acts. 

Art.  104.  Written  instruments,  made  in  the  presence  and  attested 
by  a  public  officer  duly  appointed  and  commissioned  for  that  purpose, 
purporting  to  testify  what  is  said,  done,  or  contracted  by  the  parties 
to  such  act,  are  authentic  acts,  as  are  the  copies  of  such  acts  attested  by 
such  officer  in  the  form  prescribed  by  law.  These  acts  are  called 
"  notarial  acts  ;"  but  they  have  the  same  effect  when  passed  before 
any  other  officer  authorized  by  law,  although  not  a  notary  ;  and 
whenever  the  term  notary  is  used  in  this  chapter,  it  includes  all  such 
officers  as  are  empowered  by  law  to  authenticate  private  contracts. 

Art.  105.  All  acts  passed  before  a  notary  shall  be  written  in  his 
registry,  and  signed  by  the  contracting  party,  by  the  notary,  and  two 
witnesses  at  least.  This  written  instrument  is  called  the  original 
notarial  act  ;  it  remains  as  a  record  in  the  hands  and  on  the  books  of 
record  of  the  notary.  A  copy  of  this  notarial  act,  certified  to  be  a 
true  copy  by  the  notary  or  his  successor  in  office,  and  under  his  offi- 
cial seal,  is  full  proof  of  such  act  in  any  court  within  the  jurisdiction 
of  which  such  officer  exercises  his  functions  ;  but  in  any  other  court 
the  signature  of  the  notary  must  be  certified  to  be  true,  either  by  the 
judge  of  the  court  of  highest  original  civil  jurisdiction  within  which 
the  notary  resides,  or  by  the  governor  under  the  seal  of  the  slate. 


CODE  OF  EVIDENCE.  661 

Art.  106.  In  order  to  give  lo  any  notarial  instrument  the  form  of 
an  authentic  act,  it  must  have  the  following  requisites,  the  want  of 
either  of  which  destroys  its  authenticity  : 

1st.  It  must  contain  in  the  body  of  the  act  the  name  and  office  of 
the  notary,  or  other  officer,  before  whom  it  is  passed,  and  the  place  for 
which  he  is  appointed. 

2d.  The  place  at  which,  and  the  day,  month,  and  year  when  it  was 
made. 

3d.  The  names  and  places  of  abode  of  the  parties  ;  or,  if  they  have 
no  fixed  residence,  the  last  place  of  their  permanent  abode. 

4th.  It  must  appear  that  the  act  was  passed  within  the  district  of 
country  for  which  the  notary  wras  appointed. 

5th.  It  must  be  stated  to  be  passed  in  the  presence  of  at  least  two 
witnesses,  citizens  of  this  state  and  inhabitants  of  the  place  for  which 
he  is  appointed. 

6th.  It  must  be  signed  by  the  party  obligated  if  it  be  an  UNILATERAL 
contract,  or  by  the  declarant  if  it  be  a  protest  or  declaration,  and  by 
all  the  parties  if  it  be  a  SYNALLAGMATIC  contract ;  and  if  either  of  the 
said  parties  cannot  sign  his  name,  either  from  want  of  knowledge, 
accident,  weakness,  or  disease,  he  must  declare  his  incapacity  and 
from  which  of  the  said  causes  it  proceeds,  and  such  declaration  must 
be  inserted  in  the  act.  It  will  not  be  sufficient  for  the  notary  to  cer- 
tify such  incapacity,  he  must  certify  the  declaration  of  the  party. 

7th.  It  must  be  signed  by  the  notary,  and  by  the  witnesses  who  are 
named  as  such  in  the  act.  No  person  is  a  competent  witness  for  this 
purpose  who  cannot  write. 

8th.  Where  either  of  the  parties  to  an  act  cannot  read,  the  notary 
must  certify  that  he  has  read  the  act  to  such  party  in  the  presence  of 
the  witnesses,  and  that  he  consented  thereto  ;  and  when  the  party  in- 
capable of  writing  can  make  a  mark,  he  shall  do  so,  and  the  notary, 
or  one  of  the  witnesses,  shall  write  opposite  thereto  the  name  of  such 
party,  stating  that  it  is  his  mark.  When,  from  whatever  cause,  the 
party  cannot  make  the  mark,  it  must  be  stated  in  the  instrument. 

9th.  All  signatures,  as  well  of  parties  as  of  witnesses  and  of  the 
notary,  must  be  at  the  end  of  the  instrument ;  but  for  the  approval 
of  any  correction  in  the  instrument,  the  signature  may  either  be  put 
in  the  margin  or  at  the  end  of  the  instrument,  and  a  signature  by 
initials  will  be  a  sufficient  approval  of  a  correction  which  creates  no 
material  change  in  the  instrument ;  but  every  material  correction 
must  be  approved  by  a  full  signature. 

10th.  All  interlineations,  erasures,  obliterations,  or  apparent  changes, 
in  any  part  of  the  act  which  is  necessary  to  give  it  validity,  in  the 
names  of  the  parties  or  witnesses,  in  the  expression  of  any  sums,  or 
the  description  of  the  thing  which  is  the  object  of  the  act,  in  the  date, 
in  the  time  of  any  payment,  or  in  any  other  part  of  the  act,  which 
alters  the  obligation,  or  increases  or  lessens  the  responsibility  of  either 
party,  must  be  enumerated  and  approved  by  the  signatures  of  all  the 
parties. 

llth.  The  act  must  appear  to  have  been  passed  before  one  duly  au- 
thorized by  law  to  give  authority  to  such  acts. 

Art.  107.  All  the  matters  and  forms  set  forth  in  the  last  preceding 
article,  are  necessary  to  give  to  any  act,  passed  before  a  notary,  the 
force  of  an  authentic  act ;  but  there  are  some  notarial  acts,  such  as 


662  CODE  OF  EVIDENCE. 

testaments,  to  the  validity  of  which  other  formalities  are  specially 
required,  in  addition  to  those  above  enumerated. 

Art.  108.  A  notarial  act  is  also  invalid,  as  an  authentic  act,  if,  on 
its  face,  it  appears  to  have  been  executed  by  a  married  woman,  with- 
out the  assent  of  her  husband,  or  of  the  judge  in  cases  where  such 
assent  is  required  ;  or  by  a  minor,  or  other  person  incapable  of  con- 
tracting, without  the  assistance  of  a  tutor  or  curator,  if  such  curator  or 
tutor  be  no  party  to  the  act. 

Art.  109.  Signature,  in  this  title,  means  the  name  of  the  party,  writ- 
ten by  himself;  as  evidence  of  his  assent  to  an  instrument  as  a  party, 
or  to  attest  it  as  a  witness  :  the  family  name  must  be  written  at  length 
— the  baptismal  or  prenominal  name  may  be  abbreviated,  or  indicated 
only  by  the  initial  letter,  or  altogether  omitted,  if  such  has  been  the 
usual  mode  in  which  the  signer  has  subscribed  his  name. 

Art.  110.  No  party  to  an  instrument  shall  avoid  any  obligation  crea- 
ted thereby,  by  showing  that  he  has  not  signed  it  in  his  true  name,  or 
in  the  manner  in  which  he  usually  signed  the  same,  provided  the  signa- 
ture be  made  by  him. 


SECTION  VI. 

Of  the  effect  of  notarial  acts. 

Art.  111.  Notarial  acts,  passed  in  the  form  required  by  law  before 
an  officer  duly  authorized,  are  authentic  acts,  and  have  the  following 
effects  : 

1st.  As  to  all  persons,  even  those  not  parties  to  the  act,  it  is  conclu- 
sive evidence  that  every  thing  which  the  notary  certifies  to  have  been 
declared,  acknowledged,  or  done  in  his  presence,  and  in  that  of  the 
witnesses,  was  so  declared,  acknowledged,  and  done  by  the  parties  ; 
but  against  any  but  the  parties  and  those  who  succeed  to  them  or  to 
their  rights,  it  has  no  other  effect.  Thus,  a  bona  fide  purchase  made  by 
an  authentic  act  from  a  person  in  possession,  who  has  no  title,  although 
it  can  give  no  right  against  the  true  owner,  who  was  no  party  to  the 
sale,  is  yet  conclusive  evidence  against  him,  for  the  purpose  of  establish- 
ing a  prescription  and  giving  a  title  to  the  fruits  during  the  time  that 
the  purchaser  possessed  in  good  faith. 

2d.  As  to  all  who  were  parties  to  such  act,  and  those  who  succeeded 
to  them,  or  to  their  rights,  it  is  conclusive  proof  of  that,  which  is  the 
object  of  such  act ;  and  also  of  every  thing  relating  immediately  to  the 
object  of  the  act — which  is  therein  acknowledged  by  both  parties — or 
which  is  recited  or  enounced  by  one  party  and  acknowledged  by  the 
olher,  either  expressly  or  by  necessary  implication.  That  recital  or 
enunciation  by  one  party  shall  be  said  to  be  acknowledged  by  necessary 
implication,  which  the  olher  must,  from  the  nature  of  the  transaction, 
have  known,  and  which  it  would  be  his  interest  to  deny  if  untrue,  which 
is  suffered  to  remain  uncontradicted  by  the  act. 

That  recital  or  enunciation  relates  immediately  to  the  object  of  the 
act,  which,  if  omitted,  would  make  a  material  change  in  the  obligations 
incurred,  or  rights  acquired  by  either  of  the  parties. 

Thus,  for  the  illustration  of  the  different  parts  of  the  last  rule  : — If  a 
sale  is  made  by  a  notarial  act  for  a  certain  price,  which  is  promised  to 
be  paid  in  a  given  time,  (this  purchase  and  sale  being  the  object  of  the 


CODE  OF  EVIDENCE.  663 

act,)  it  is  conclusive  proof  of  that  transaction  between  the  parties,  so 
that  the  purchaser  needs  no  other  proof  of  the  sale,  nor  the  seller  of 
the  promise  to  pay  the  price,  than  the  production  of  the  act  itself. 

If  the  thing  sold  was  subject  to  a  yearly  rent  or  charge,  and  the  seller 
declare  that  he  has  deposited  the  money  in  the  hands  of  a  third  person 
for  the  payment  of  the  arrears  up  to  the  day  of  sale,  this  enunciation  is 
not  the  immediate  object  of  the  act ;  yet  it  relates  immediately  to  it, 
because  the  omission  of  it  would  have  made  a  change  in  the  rights  and 
obligations  of  the  parties  ;  but  it  is  not  conclusive  against  the  purchaser, 
unless  he  expressly  acknowledge  that  it  is  true,  because  it  is  not  a  fact, 
which  he  is  supposed  to  know.  If  he  expressly  acknowledge  it,  it  is 
conclusive,  and  he  can  never  afterwards  call  in  question  the  truth  of 
such  deposit.  But  if,  in  the  last  example,  the  rent-charge  had,  before 
the  sale,  been  due  to  the  purchaser  himself,  and  the  seller  had,  in  the 
act,  declared  that  all  the  arrears  were  paid  ;  this  declaration,  if  uncon- 
tradicted  by  the  buyer,  would  of  itself,  without  any  express  acknow- 
ledgment, by  necessary  implication,  be  conclusive  evidence  that  the 
declaration  was  true  ;  because  the  fact,  from  the  nature  of  the  case,  was 
within  the  knowledge  of  the  purchaser,  and  it  was  an  enunciation  which, 
if  not  true,  it  was  his  interest  to  contradict. 

If  in  the  sale  the  vendor  declare  that  he  had  acquired  the  property  as 
instituted  heir  of  A.  B.,  and  the  legal  heir  of  A.  B.  should  bring  a  suit 
for  the  property  against  the  purchaser,  alleging  that  the  will,  under 
which  the  vendor  claimed,  was  void — this  enunciation  in  the  act  would 
not  be  conclusive  evidence  that  it  belonged  to  the  estate  of  A.  B.,  for 
this  enunciation  did  not  immediately  relate  to  the  object  of  the  act, 
which  was  the  sale  ;  nor  was  it  a  matter,  either  within  the  knowledge 
of  the  purchaser,  or  which  he  was  interested  in  denying  if  it  was  untrue. 

3d.  Any  enunciation  made  in  a  notarial  act,  is  evidence  against  the 
party  making  the  enunciation  in  favour  of  the  person  who  is  no  party 
to  the  act,  whether  it  relate  to  the  object  of  the  suit  or  not ;  but  it  is  not 
conclusive  evidence  ;  it  amounts  to  an  extrajudicial  confession  only,  and, 
as  such,  is  ranked  in  the  class  of  presumptions,  which  have  more  or  less 
weight,  according  to  the  circumstances  under  which  the  declaration 
was  made. 

4th.  A  declaration  or  enunciation  made  by  one  party  to  an  act,  and 
either  expressly  or  by  necessary  implication  acknowledged  by  another, 
forms  the  same  kind  of  proof  against  both,  as  set  forth  in  the  last  pre- 
ceding article. 

5th.  An  act  signed  by  the  parties,  intended  for  a  notarial  act,  but  not 
valid  as  such  for  want  of  some  formality  required  by  law,  is  still  good 
as  an  act  under  private  signature,  if  it  have  the  requisites  to  give  it 
force  as  a  private  act ;  nor  can  the  defect  of  its  not  being  signed  in  as 
many  copies  as  there  are  parties  in  interest,  be  opposed  to  its  validity 
as  a  private  act. 

6th.  The  mention  in  an  inventory,  made  by  notarial  act  of  any  obli- 
gation or  other  paper,  forms  no  such  proof  against  one  not  a  party  to 
the  inventory,  as  to  dispense  with  the  production  of  the  original.  The 
entry  in  the  inventory  proves  that  a  paper  purporting  to  be  such  an 
obligation  was  produced,  but  it  is  not  conclusive  evidence  that  it  was 
the  act  of  the  party.  Where  the  original  has,  by  other  proof,  been 
shown  to  have  existed,  and  has  since  been  destroyed,  and  there  are  cir- 
cumstances to  prove  its  identity  with  the  paper  mentioned  in  the  inven- 


664  CODE  OF  EVIDENCE. 

tory,  it  may  be  admitted  as  presumptive  proof  of  the  contents  of  such 
obligation. 

7th.  Although  the  enunciations  made  by  the  parties  are,  in  the  cases 
above  stated,  sometimes  conclusive  and  sometimes  presumptive  proof 
between  the  parties,  and  are  sometimes  presumptive  proof  in  favour  of 
third  persons ;  they  form  no  species  of  proof  whatever  against  third 
persons,  and  cannot  injure  their  rights  or  obligate  them. 

To  this  rule  there  is  one  exception  :  an  enunciation  in  an  act,  made 
many  years  before  it  is  offered,  may  at  the  discretion  of  the  judge, 
under  the  limitation  hereafter  expressed,  be  admitted  as  presumptive 
evidence  between  those  who  are  not  parties  to  it  in  questions  of  age, 
relationship,  descent,  affinity,  filiation,  absence,  or  death  ;  but  in  no 
other  questions. 

Thus,  an  ancient  notarial  act  of  a  family  assembly  may  be  admitted 
as  presumptive  proof  between  third  persons,  that  the  parties  who  com- 
posed it  stood  in  the  various  degrees  of  relationship  which  they  severally 
enounced.  So,  too,  the  enunciation  of  the  deceased,  in  an  authentic 
and  ancient  certificate  of  burial,  of  the  age  of  the  child  ;  in  the  like 
certificate  of  baptism,  the  time  of  the  death  of  a  person  in  the  act  of 
partition  between  his  heirs,  may  be  permitted  as  presumptive  proof  of 
the  enunciations  therein  contained. 

But  the  discretion  of  the  judge,  to  admit  the  testimony  mentioned 
in  the  exception  to  the  rule,  is  limited  to  cases  in  which,  from  the  date 
of  the  act  and  from  other  circumstances,  he  is  convinced  that  the  parties 
making  the  enunciation  had  no  motive  to  declare  a  falsehood. 

Sth.  Notarial  acts  take  effect  immediately  after  their  signature. 
Therefore,  no  alteration  of  an  act,  once  perfected,  is  lawful  even  if  done 
with  the  consent  of  the  parties  ;  any  modification  they  desire  must  be 
made  by  a  separate  act ;  but  such  an  act  cannot  affect  any  rights  acquir- 
ed by  third  persons  by  the  act  itself,  or  derived  from  one  of  the  parties 
after  such  act. 


SECTION  VII. 

For  what  causes  ami  in  what  manner  a  notarial  act  may  be  declared  not  authentic. 

Art.  112.  No  notarial  act,  which  contains  on  the  face  of  it  any 
omission  of  any  of  these  things  which  have  been  herein  before  enu- 
merated as  necessary  to  give  it  validity,  shall  be  considered  as  an 
authentic  act ;  and  the  evidence  of  this  shall  be  the  inspection  of  the 
authenticated  copy,  or  of  the  original  in  cases  where  it  is  required  to 
be  produced,  or  of  other  evidences  taken  according  to  the  directions  of 
the  following  article. 

Art.  113.  When,  on  the  presentation  of  the  copy  of  a  notarial  act 
duly  certified,  if  the  party  against  whom  it  is  produced  will  declare,  on 
oath,  or  otherwise  make  appear  to  the  court  that  there  are  defects  in 
the  original  of  the  said  act,  which  do  not  appear  on  the  copy,  it  shall 
be  the  duty  of  the  judge,  if  the  facts  are  material,  and  also  in  all  cases 
where  the  hand-writing  of  the  parties,  witness,  or  notary,  may  be 
legally  brought  in  question,  to  cause  the  original  to  be  brought  into 
court,  if  the  same  be  within  the  jurisdiction  of  the  court,  but  if  other- 
wise, then  to  appoint  three  proper  persons  to  make  a  collated  copy  of 
such  original,  and  to  report  specially  whether  there  are  any,  and  if 


CODE  OF  EVIDENCE.  665 

any,  what  variation  between  the  original  and  the  copy  which  had  been 
produced,  and  also  between  the  handwriting  of  the  notary,  parties,  or 
witnesses,  in  question — to  compare  the  acknowledged  handwriting  of 
the  party  whose  hand  is  disputed  with  that  which  is  in  dispute,  and  to 
report  thereon  ;  which  persons  shall  be  sworn  before  some  magistrate 
to  perform  the  duty  faithfully  ;  and  their  report,  or  that  of  a  majority 
of  them,  shall  be  a  legal  presumption  of  the  truth  of  what  it  contains. 
After  hearing  the  report  of  the  persons  commissioned  as  aforesaid,  and 
such  other  legal  proofs  as  may  be  adduced  by  the  parties,  the  judge 
shall  determine  on  the  validity  of  the  original  act,  in  cases  where  it  is 
not  within  the  jurisdiction  of  the  court,  in  the  same  manner  as  he 
would  by  inspection  if  the  original  had  been  produced. 

Art.  114.  There  are  cases  in  which  a  notarial  act,  although  it  may 
contain  apparently  all  the  requisites  to  make  it  an  authentic  act,  ought 
not  be  admitted  as  such.  These  are  : 

1st.  Where  the  signature  of  the  notary,  parties,  or  witnesses,  or 
either  of  them,  are  forged. 

2d.  Where  the  act  has  been  altered,  or  a  material  part,  since  the  ex- 
ecution. 

3d.  Where  either  the  notary,  or  either  of  the  witnesses,  were  not 
present  when  the  act  was  signed  by  the  parties  or  by  either  of  them. 

4th.  Where  the  act  was  falsely  read  in  a  material  part  to  a  party, 
who  could  not  read  ;  or  falsely  translated  in  a  material  part  to  a  party 
who  could  not  understand  the  language  in  which  it  was  written. 

5th.  Where  it  was  executed  out  of  the  limits  for  which  the  notary 
was  appointed. 

6th.  Where  the  act  is  signed  by  one  personating  the  party  whom  it 
purports  to  bind,  whether  the  one  so  personating  him  bears  the  same 
name  or  not. 

7th.  Where  the  act  purports  to  create  any  obligation  upon,  or  to  dis- 
pose of,  or  affect  the  property  of  any  person  incapable  by  law  of  con- 
tracting without  the  aid  of  a  curator  or  tutor,  and  no  such  tutor  or 
curator  was  party  to  the  act. 

8th.   Where  the  act  was  made  in  fraud  of  creditors. 

9th.  Where  it  was  made  without  consideration,  or  for  an  inadequate 
consideration,  in  order  to  avoid  any  law  regulating  successions. 

10th.  Where  it  is  made  under  any  other  circumstances,  which,  by 
the  laws  in  force  at  the  time  of  making  the  act,  shall  be  declared  to 
render  it  void. 

llth.  Where  any  of  the  requisites  necessary  to  give  validity  to  the 
act,  have  been  falsely  certified  by  the  notary. 

12th.  Where  the  act  wants  any  of  the  parts  or  clauses  which  are 
necessary  by  law  to  give  effect  to  such  contract  as  it  purports  to  be. 
But  this  shall  not  prevent  an  act,  invalid  as  to  one  intent,  from  being 
operative  in  another,  in  cases  where  it  is  otherwise  allowed  by  law. 

13th.  Where  either  of  the  parties  were  in  a  state  of  mind,  either 
from  bodily  weakness,  derangement  of  intellect  by  intoxication,  or 
other  cause,  which  rendered'hitn  incapable  of  understanding  the  nature 
and  consequence  of  the  act,  and  such  incapacity  must  have  been  appar- 
ent to  the  notary  and  witnesses. 

14th.  Where  the  witnesses  have  not  the  qualifications  required  by 
law. 

15th.  Where  the  consideration,  declared  to  have  been  paid  by  the  act, 
4  I 


666  CODE  OF  EVIDENCE. 

has  not  been  paid  ;  and  this  whether  there  is  a  renunciation  of  the  e)f- 
ception  of  non  numerata  pecunia,  or  not. 

16th.  Where  the  act  contains  any  disposition  of  property,  or  any 
pecuniary  obligation  in  favour  of  the  notary,  or  any  of  his  relations, 
by  affinity  or  consanguinity  in  the  ascending  or  descending  line,  or  col- 
laterally to  the  relationship  by  consanguinity  or  affinity,  of  uncle  or 
nephew,  inclusively  ;  and  this  extends  to  the  case  where  the  disposi- 
tion is  made  in  the  name  of  a  person  interposed  for  the  benefit  of  the 
notary  or  any  such  relation. 

17th.  Where  the  act  purports  to  dispose  of  property  which  cannot, 
by  law,  be  conveyed — such  as  the  dotal  property  of  a  married  woman. 

Art.  115.  For  any  one  of  the  causes  mentioned  in  the  last  preceding 
article,  or  for  any  of  the  defects  apparent  on  the  face  of  the  act,  which 
are  in  this  title  declared  to  destroy  its  authenticity,  a  suit  may  be  brought 
by  any  one  interested  in  having  the  said  act  declared  invalid.  In 
which  suit  the  objections  made  to  the  same  shall  be  particularly  set 
forth  ;  and  all  persons,  interested  in  supporting  the  validity  of  the  act, 
must  be  made  parties. 

Art.  116.  Whenever  a  notarial  or  other  authentic  act  is  the  founda- 
tion of  any  suit,  or  of  the  defence  to  any  suit — that  is  to  say,  when- 
ever, to  support  the  claim  for  which  the  suit  is  brought,  or  the  defence 
which  is  made  to  the  suit,  it  is  necessary  to  produce  such  authentic  act. 
In  all  such  cases,  a  copy  of  the  act,  intended  to  be  relied  on,  shall  be 
filed  with  the  petition,  answers,  or  other  pleading  in  which  a  reference 
is  made  in  the  same  ;  and  if  the  party  against  whom  it  is  produced, 
intends  to  object  to  the  same,  he  must  do  so  specially  and  in  writing, 
specifying  the  particular  cause  of  nullity  on  which  he  intends  to  rely  ; 
otherwise  no  such  objection,  other  than  those  apparent  on  the  face  of 
the  act,  can  be  heard  on  the  trial. 

Art.  117.  Wherever  it  may  be  necessary  to  introduce  an  authentic 
act  in  evidence,  on  some  collateral  matter,  not  being  the  foundation  of 
the  suit  ;  or,  if  introduced  by  the  defendant,  of  the  defence,  the  par- 
ty, if  he  can  reasonably  be  supposed  according  to  the  circumstances  of 
the  case  to  have  foreseen  the  necessity  of  producing  such  act,  shall  file 
a  copy  thereof  ten  days  at  least  before  the  trial,  and  shall  give  notice 
to  the  opposite  party,  who  may  then  make  his  objections  in  the  manner 
directed  by  the  last  article. 

Art.  118.  If  the  party  who  ought,  according  to  the  preceding  arti- 
cles, to  file  the  copy  of  a  notarial  act  on  which  they  mean  to  rely,  do 
not  file  it,  the  court  may  force  its  production,  on  the  application  of  the 
opposite  party  ;  or,  at  his  option,  he  may  make  his  objections  verbally 
at  the  trial ;  and  if  they  are  supported  either  by  inspection  or  evidence, 
the  act  must  be  rejected  as  evidence,  and  the  party  whose  duty  it  was 
to  have  filed  the  act,  cannot  in  such  case  object  to  the  want  of  notice 
of  the  objections. 

Art.  119.  If  it  appears  that  the  party  could  not  reasonably  have  fore- 
seen the  necessity  of  producing  such  authentic  act,  and  an  objection  be 
taken  to  its  authenticity  for  any  cause  not  apparent  on  the  face  of  the 
act,  the  court,  if  they  think  the  act  material  evidence,  and  if  the  ob- 
jection be  supported  by  affidavit  either  of  the  party  or  other  person, 
may,  according  to  circumstances,  give  the  necessary  time  to  make  and 
answer  the  objections. 

Art.  120.  In  all  cases  of  objections  to  the  validity  of  any  act,  which 
appears  on  the  face  of  it  to  have  all  the  formalities  required  by  law  to 


CODE  OF  EVIDENCE.  667 

give  it  authenticity,   the  burthen  of  proving  the  defects  lies  on  the 
party  objecting  to  the  validity  of  the  act. 

Art.  121.  On  the  question  of  the  validity  of  an  authentic  act,  the 
persons  whose  names  are  subscribed  as  witnesses,  when  not  otherwise 
incompetent,  are  competent  witnesses. 

The  notary  is  also  a  good  witness  in  all  cases  where  no  objection  has 
been  made  to  the  act  in  any  point  that  implies  a  want  of  integrity,  mis- 
conduct, or  inattention  on  his  part;  or  where,  if  made,  they  are  entirely 
unsupported.  0 

Art.  122.  Authentic  acts,  not  notarial,  may  be  declared  invalid  for 
either  of  the  following  causes  : 

1st.  Forgery  of  the  signatures,  or  either  of  them,  or  of  the  body  of 
the  act. 

2d.  Want  of  legal  authority  in  the  party  making  such  act. 

3d.  Making  the  act  out  of  the  limits  for  which  the  officer  was  ap- 
pointed. 

4th.  If  the  authentic  act  be  a  commission,  or  other  authority  given 
under  a  law,  the  want  of  the  qualifications  required  by  law  in  the  person 
commissioned  or  designated  to  perform  the  duty,  including  the  objec- 
tion to  the  want  of  security,  and  the  taking  of  the  oaths  of  office  where 
they  are  required. 

5th.  Fraud  in  obtaining  the  act  by  a  false  personification,  or  such 
other  false  pretence  as  would  make  the  party  practising  it  liable  to 
punishment  if  they  had  been  used  to  procure  the  delivery  of  goods  or 
money,  under  such  penal  laws  as  may  be  in  force  at  the  time  of  using 
such  false  pretences. 

6th.  Bribery,  either  to  the  officer  making  the  act,  or  any  other  per- 
son, to  do  any  thing  necessary  to  procure  the  act  to  be  made. 

Art.  123.  Suits  for  invalidating  all  authentic  acts  (not  notarial)  and 
oppositions  to  their  introduction  in  evidence,  shall  be  governed  by  the 
same  rules  as  are  laid  down  respecting  notarial  acts. 

Art.  124.  Forgery  and  bribery,  mentioned  as  causes  for  invalidating 
a  notarial  or  other  authentic  act,  shall  be  construed  according  to  the 
definitions  of  those  offences  given  in  such  penal  law  as  shall  be  in  force 
at  the  time  such  acts  were  made. 

Art.  125.  When  a  notarial  act,  or  other  authentic  act,  shall,  by  final 
sentence  of  a  court,  be  declared  void  for  any  cause,  the  court  pronouncing 
such  sentence  shall  direct  that  it  shall  be  noted  in  the  margin  of  the 
original  of  such  notarial  act,  and  of  the  record  of  such  other  authentic 
act,  if  any  such  record  shall  have  been  kept,  and  on  the  certified  copy 
which  was  produced  in  court. 


CHAPTER  II. 
Of  unauthenticated  scriptory  evidence. 

SECTION  I. 

Of  the  different  kinds  of  unauthenticated  scriptory  evidence. 
Art.  126.  Unauthenticated  scriptory  evidence  is  of  two  kinds 


668  CODE  OF  EVIDENCE. 

1.  That  which  is  attested  by  the  signature  of  the  party  whose  act  it 
purports  to  be,  called  an  act  under  private  signature. 

2.  All  other  written  evidence  not  so  attested. 


SECTION  II. 
Of  evidence  under  private  signature. 

Art.  127.  All  written  instruments,  signed  by  the  party  whose  act 
they  purport  to  be,  which  are  not  authentic  acts,  are  called  acts  under 
private  signature. 

Art.  128.  Independent  of  positive  law,  no  written  instrument  is,  in 
its  nature,  evidence  of  the  truth  which  it  contains.  It  shows  that  certain 
covenants  are  written,  and  that  certain  names  are  subscribed  to  them  ; 
but  in  itself  it  contains  no  proof,  not  even  of  the  presumptive  kind,  that 
those  names  were  subscribed  by  the  parties,  or  that  the  covenants  were 
made  by  them.  In' authentic  acts  this  proof  is  supplied  by  the  credit 
which  the  law  declares  shall  be  given  to  the  attestation  of  a  sworn 
officer.  To  acts  under  private  signature,  no  such  credit  is  given  ;  the 
production  of  them  does  not  rai'se  even  simple  presumptions  of  their 
validity. 

Art.  129.  But  although  the  law  creates  no  presumption  from  the  pro- 
duction of  such  an  act,  yet  to  avoid  unnecessary  delays  and  expenses, 
it  permits  the  party  against  whom  it  is  produced  to  be  interrogated 
whether  the  signatures  are  true.  From  this  permission  result  the  dif- 
ferent effects  produced  by  the  confession,  the  denial,  or  the  ignorance 
of  the  fact,  stated  in  the  answer  of  the  defendant,  or  of  his  refusal  to 
acknowledge  or  deny  the  writing. 

Art.  130.  In  every  case  where  any  party  to  a  suit  finds  it  necessary 
to  produce  a  writing  under  private  signature,  either  to  support  his  action 
or  maintain  his  defence,  and  wishes  to  have  the  answer  of  the  opposite 
party,  as  to  the  truth  of  the  signature,  he  must  annex  the  original 
instrument  to  his  petition  or  answer,  and  must  pray  that  the  opposite 
party  may  declare  whether  the  signature  be  true  or  false. 

Art.  131.  If  the  signature  which  a  party  is  thus  called  on  to  confess 
or  deny,  purports  to  be  his  own,  the  answer  must  be  explicit,  either 
that  he  confesses  it  to  be  his,  or  that  it  is  forged.  An  answer  which 
does  not  directly  deny  the  signature,  shall  be  deemed  to  be  a  confession. 

Art.  132.  If  the  signature  purports  to  be,  not  that  of  the  party  him- 
self, but  of  some  other  person,  for  whose  obligation  the  opposite  party 
endeavours  to  make  him  liable,  either  personally  or  by  virtue  of  some 
office,  duty,  or  trust,  then  the  party  interrogated  is  not  obliged  to 
answer  explicitly,  as  in  the  former  case.  If  he  have  seen  the  party 
write  whose  signature  is  in  question,  or  is,  from  other  circumstances, 
acquainted  with  his  handwriting,  he  must  say  so,  and  declare  whether 
he  believes  the  signature  to  be  true  or  false.  It  is  only  when  he  de- 
clares himself  utterly  ignorant  of  the  handwriting  that  he  is  dispensed 
with  declaring  his  belief. 

Art.  133.  The  answers  to  these  interrogatories  need  not  to  be  on 
oath,  unless  it  is  required  by  the  opposite  party  ;  and  when  it  is,  the 
effect  is  regulated  by  special  provisions  for  that  purpose. 

Art.  134.  The  recognition  or  denial  of  a  signature  must  be  made  by 
the  party  himself,  who  is  interrogated.  A  wilfully  false  answer,  not 


CODE  OF  EVIDENCE.  669 

only  incurs  the  civil  effects  herein  provided,  but  is  considered  as  an 
offence,  and  is  punishable  by  the  Penal  Code. 

Art.  135.  The  following  are  the  effects  produced  by  the  answers,  or 
by  the  refusal  to  answer,  to  the  interrogatory  demanding  the  recognition 
of  a  signature. 

1st.  If  the  party  avow  the  signature,  whether  it  be  his  own  or  that 
of  another  for  whose  obligation  he  is  responsible,  it  makes  the  act,  as 
to  him  and  his  representatives,  an  authentic  act,  and  judgment  may  be 
immediately  rendered  thereon,  without  any  other  proof  or  trial — if  such 
avowal  be  not  accompanied  by  some  legal  defence,  in  the  manner  herein- 
after provided;  and  it  has,  with  respect  to  third  persons,  the  same  effect 
that  an  authentic  act  in  any  other  form  has  by  law. 

3d.  If  it  purport  to  be  the  act  of  one  for  whose  obligation  the  res- 
pondent is  liable,  and  he  say  that  he  is  acquainted  with  the  signature 
and  believes  it  to  be  true,  it  creates  a  legal  presumption  in  favour  of 
the  act. 

3d.  If  the  signature  be  denied,  or  if  in  cases  where  he  is  permitted 
to  say  so,  the  respondent  answers,  that  he  is  ignorant  whether  the  signa- 
ture be  true  or  false  ;  then  no  presumption  is  to  be  raised  on  either 
side.  But  the  burthen  of  proving  the  signature  true  lies  on  him  who 
asserts  it. 

4th.  If  the  party  interrogated  do  not  answer  in  the  time  prescribed 
by  the  rules  of  court,  the  default  is  equivalent  to  a  confession,  and  gives 
authenticity  to  the  act. 

5th.  If  the  party  avowing  the  signature  have  a  legal  defence  to  make 
against  the  operation  of  the  instrument,  supposing  the  signature  to  be 
true,  he  may  set  forth  the  same  in  his  answer,  and  then  the  obligation 
of  the  act  shall  not  be  carried  into  effect  until  such  obligations  be 
decided  on.  A  legal  defence,  in  the  meaning  of  this  article,  is  any  such 
as  might  be  made  on  an  ordinary  trial,  after  the  signature  to  the  instru- 
ment has  been  proved. 

Art.  136.  In  all  cases,  whether  under  this  section  or  not,  when  it 
becomes  necessary  to  prove  handwriting,  it  shall  be  done  in  the  man- 
ner following  : 

§  1st.  If  there  be  one  or  more  subscribing  witnesses,  one  of  them 
at  least  must  be  examined,  if  he  be  within  the  state,  and  his  testimony 
that  he  saw  the  party  sign,  is  direct  evidence,  as  is  also  the  testimony 
of  a  witness  to  the  same  fact,  although  he  was  not  a  subscribing 
witness. 

§  2d.  If  the  names  of  subscribing  witnesses  appear  to  the  act,  and 
they  are  dead  or  not  within  the  state,  the  handwriting  of  one  at  least 
of  the  said  witnesses,  and  of  the  party  to  the  act,  must  be  proved  in 
one  or  all  of  the  modes  following,  that  is  to  say — by  a  witness  who  has 
seen  the  party  write,  or  who  has  acquired  a  knowledge  of  his  hand- 
writing by  correspondence,  (by  which  is  meant,  writing  letters  and 
receiving  answers,  under  such  circumstances  as  give  no  suspicions  of 
deception.) 

Handwriting  may  also  be  proved  by  a  comparison  with  some  au- 
thentic acty  or  other  instrument  acknowledged  by  the  party,  or  posi- 
tively proved  by  witnesses  in  the  same  cause  to  be  his.  This  mode 
of  proof  may  be  resorted  to  at  the  request  of  either  party,  and  the 
comparison  is  made  by  the  judge  on  his  own  inspection  ;  but  he  may, 
at  the  like  request,  be  assisted  by  persons,  skilled  in  the  knowledge  of 
handwritings,  named  by  the  court,  and  sworn  to  eompare  the  papers 


670  CODE  OF  EVIDENCE.  , 

and  truly  to  give  their  opinion  to  the  judge.  But  no  writing  can 
serve  as  an  instrument  of  comparison  which  has  been  judicially  de- 
nied hy  the  part}',  although  it  may  have  been  proved  to  be  his. 

§  3d.  If  there  are  no  subscribing  witnesses  to  the  act,  and  none  who 
can  give  direct  evidence  of  the  signature,  then  the  handwriting  may 
be  proved  in  either  or  all  of  the  modes  set  forth  in  the  last  preceding 
paragraph. 

§  4th.  An  act,  under  private  signature,  may  also  be  proved  by  an 
authentic  act,  if  it  be  therein  either  recited  or  referred  to  in  such  a  man- 
ner as  that  its  identity  is  clearly  established.  Thus,  if  in  a  notarial  act 
of  inventory,  a  promissory  note,  given  to  the  deceased,  by  a  person  who 
signed  the  inventory,  as  executor  or  tutor,  is  particularly  set  forth, 
and  the  note  itself  is  referred  to  by  a  mark  at  the  time  of  making  the 
notarial  act ;  this  sufficiently  identifies  the  note,  and  renders  no  other 
proof  necessary.  But  if  the  act,  under  private  signature,  be  merely 
recited  in  an  authentic  act  to  which  the  maker  of  the  note  is  party, 
but  the  note  be  not  produced  and  marked  at  the  time  of  making  the 
authentic  act,>then  other  proof  must  be  resorted  to,  to  identify  the 
act  under  private  signature  which  is  in  dispute,  with  the  one  recited 
in  the  authentic  act. 

§  5th.  None  of  the  above  modes  of  proving  an  act  under  private 
signature  exclude  the  admission  of  the  testimony  of  witnesses,  who, 
although  they  were  neither  present  at  the  making  of  the  act,  nor  are 
acquainted  with  the  handwriting,  yet  testify  to  facts  to  prove  or  dis- 
prove the  act,  which  could  not  reasonably  be  supposed  to  have  hap- 
pened if  the  signature  were  in  the  one  case,  and  in  the  other  were  not 
that  of  the  party. 

§  6th.  The  proof  by  comparison  of  hands  alone,  unsupported  by 
other  circumstances,  is  not  a  sufficient  evidence  of  the  validity  of  an 
act  under  private  signature,  where  the  signature  has  been  denied. 

Art.  137.  No  suit  can  be  brought  for  the  purpose  of  making  the 
party  to  an  act,  under  private  signature,  acknowledge  or  deny  it,  so 
as  to  give  it  the  effect  of  an  authentic  act,  before  the  time  limited  in 
the  obligation  for  it  to  become  due  has  elapsed,  unless  in  cases  where 
by  law  it  is  made  exigible  before,  except  as  is  provided  in  the  follow- 
ing section. 


SECTION  HI. 
Of  copies. 

Art.  138.  It  is  a  general  rule  of  evidence,  that  copies  are  not  evi- 
dence when  the  original  can  be  resorted  to.  Copies  of  certain  authen- 
tic acts  are  modified  exceptions  to  this  rule.  There  is  no  exception 
as  to  acts  under  private  signature.  There  are,  however,  different 
kinds  of  copies  of  such  acts  entitled  to  different  degrees  of  credit,  in 
cases  where  the  original  cannot  be  produced.  There  are  formal  and 
informal  notarial  copies,  and  unattested  copies. 

Art.  139.  If  the  holder  of  an  act,  under  private  signature,  thinks 
the  original  is  exposed  to  risk  of  loss,  or  fears  that  the  evidence  may 
not  be  procured  when  wanted,  he  may,  at  any  time  at  his  own  ex- 
pense, present  a  petition  to  any  court  of  competent  jurisdiction, 
and  pray  that  the  party  who  has  signed  the  act  may  be  summoned  to 


CODE  OF  EVIDENCE.  671 

attend  at  the  office  of  some  notary,  at  a  given  time,  in  order  to  witness 
the  registry  of  such  act,  a  copy  whereof  must  be  annexed  ;  and  the 
party  shall  be  summoned  to  attend  accordingly. 

Art.  140.  If  the  party  summoned  shall  file  his  answer  to  such  peti- 
tion, and  deny  the  signature  to  the  act,  then  that  fact  shall  be  tried  as 
in  ordinary  cases,  and  if  found  in  favour  of  the  petitioner,  judgment 
shall  be  rendered  for  him  with  costs,  directing  that  the  instrument 
shall  be  registered. 

Art.  141.  If  the  party  summoned  does  not  deny  the  signature,  but 
(in  cases  where  such  answer  is  permitted)  shall  say,  that  he  is  ignorant 
whether  it  be  true  or  false,  then  evidence  must  be  produced  as  in 
common  cases  ;  and  if  it  be  found  that  the  act  is  valid,  it  shall  be 
ordered  to  be  registered.  / 

Art.  142.  If  the  party  make  no  answer,  and  shall  attend  at  the 
time  and  place  directed  for  the  registry,  whether  he  then  acknowledge 
the  act  or  not,  the  notary,  on  production  of  a  certified  copy  of  the 
petition  and  the  judge's  order,  of  the  return  of  the  proper  officer 
certifying  that  the  party  was  duly  summoned,  or  in  cases  where 
after  proof  of  the  act  in  court,  it  shall  be  ordered  to  be  registered,  on 
production  of  that  judgment,  shall  register  the  act  in  his  ordinary 
register,  and  shall  annex  thereto  the  certified  copies  of  the  previous 
judicial  proceedings. 

Art.  143.  If  the  party,  after  being  summoned,  do  neither  answer 
nor  attend,  the  notary  shall,  in  like  manner,  proceed  to  copy  the  act 
and  annex  the  proceedings.  Authenticated  copies  of  records,  thus 
made,  are  called  copies  in  form,  and  they  have  the  same  force  and 
effect  as  the  originals,  if  the  said  originals  should  be  lost  or  destroyed  ; 
but,  if  not  proved  to  be  so  lost  or  destroyed,  they  must  be  produced 
in  any  suit  brought  thereon.  The  said  copy  and  proceedings  shall 
be  authentic  evidence  of  the  signature  ;  but  this  shall  not  entitle  the 
plaintiff'  to  prompt  execution  thereon  ;  it  only  dispenses  him  with  the 
proof  of  the  signature  and  with  the  production  of  the  original,  in  case 
it  be  lost  or  destroyed. 

Art.  144.  Proof  of  the  destruction  of  an  original  act  has  a  different 
effect  from  that  which  is  produced  by  showing  that  it  is  lost.  In  the 
first  case,  the  court  may,  on  production  of  the  formal  copy  or  other 
legal  proof,  give  immediate  effect  to  the  obligation  of  the  act.  In  the 
last,  they  must  direct  that  security  shall  be  given  to  repay  the  money, 
if  the  original  should  be  produced  in  the  hands  of  a  bona  fide  holder, 
within  such  time  as  the  court,  in  their  discretion,  shall  direct,  or 
order  that  the  judgment  shall  not  be  executed  until  public  notice  shall 
have  been  given  for  such  a  time  and  at  such  places  as  the  court  shall 
direct,  describing  the  instrument,  setting  forth  the  judgment  and  call- 
ing on  all  persons  to  allege  any  reasons  why  it  should  not  be  carried 
into  effect.  The  provisions  of  this  article  apply  to  all  cases  where 
judgment  is  given,  or  evidence  of  the  contents  of  an  instrument  lost  or 
destroyed,  as  well  as  in  cases  coming  under  this  section. 

Art.  145.  Acts  may  also  be  recorded  without  any  judicial  proceed- 
ing, if  done  in  the  presence  of  the  party  obligated,  testified  by  their 
signature,  and  attested  in  the  common  form  by  the  notary.  Authen- 
ticated copies  of  such  records  are  also  copies  in  form,  and  have  the 
force  and  effect  with  the  copies  mentioned  in  the  preceding  article. 

Art.  146.  Acts  under  private  signature  may  also  be  transcribed  on 
the  registry  of  a  notary,  without  any  judicial  order,  and  out  of  the  pre- 


672  CODE  OF  EVIDENCE. 

sence  of  the  parties.  This  registry,  and  notarial  copies  thereof,  are 
called  informal  copies.  They  do  not  fully  replace  the  original,  in  case 
of  its  loss,  as  the  formal  copies  do.  They  have,  however,  the  following 
effects  : 

J.  They  serve,  as  the  foundation  of  a  prescriptive  right,  from  the 
time  of  the  registry  only. 

2.  They  verify  the  existence  of  the  act,  back  at  least  to  the  period  of 
its  registry,  where  the  time  of  the  execution  is  in  question. 

3.  Where  the  party  has  enjoyed  or  exercised  the  right  given,  or 
possessed  the  property  purported  to  be  conveyed,  by  such  act,  for  ten 
years  from  the  time  of  registry,  without  interruption,  it  has  the  force 
of  an  authentic  act. 

4.  Connected  with  other  proof  of  the  execution  of  the  original  act 
and  its  loss,  and  of  the  identity  of  the  paper  which  was  registered  with 
such  original,  they -may  form,  according  to  circumstances,  presumptive 
evidence  of  the  contents  of  such  original. 

Art.  147.  An  informal  copy,  without  the  intervention  of  a  justice 
or  of  a  public  officer,  is  called  an  unattested  copy,  and  it  may,  when 
the  loss  of  the  original  is  proved,  be  admitted  as  presumptive  evidence, 
to  show  what  were  its  contents,  in  cases  where  it  can  be  established, 
by  legal  proof,  that  the  copy  is  correct,  and  that  the  original,  from 
which  it  was  taken,  was  executed  by  the  party  against  whom  it  is  pro- 
duced. 

Art.  148.  In  case  it  is  proved  that  the  original  was  purposely  de- 
stroyed by  the  party  offering  the  copy,  or  by  him  under  whom  he 
claims  ;  no  copy,  not  even  a  formal  one,  shall  be  admitted  in  evidence. 

Art.  149.  When  the  original  is  proved  to  be  in  the  possession  of  the 
opposite  party,  an  informal  copy  is  presumptive  evidence  of  the  con- 
tents, if  the  original  is  not  produced  after  due  notice.  In  such  case, 
even  parol  proof  may  be  resorted  to  for  that  purpose  in  the  manner 
hereinafter  provided. 

Art,  150.  Original  acts,  under  private  signature,  may  also  be  depo- 
sited in  the  office  of  a  notary,  who  must  enter  in  his  register  an  act  of 
deposit. 

Art.  151.  The  act  of  deposit  must  declare  at  whose  request  it  is  made, 
and  designate  the  parties  to  the  act  who  were  present  at  such  deposit ; 
it  must  be  signed  by  those  parties,  by  the  notary,  and  two  witnesses,  in 
the  form  of  other  notarial  acts.  The  notary  must  annex  thereto  the  act 
deposited,  having  first  made  his  paraph  at  the  foot  of  every  page  of 
writing  contained  in  such  act,  and  carefully  noted  all  interlineations, 
erasures,  or  obliterations,  appearing  thereon. 

Art.  152.  Acts  thus  deposited,  and  copies  thereof  duly  attested,  have 
the  force  of  authentic  acts  against  the  parties  who  have  signed  such  act  of 
deposit,  from  the  date  of  the  act  deposited.  Against  third  persons  they 
have  the  same  effect  which  authentic  acts  are  declared  to  have,  only 
from  the  date  of  the  deposit. 

Art.  153.  Acts  deposited  by  one  party  alone  have  no  effect  as 
authentic  acts,  except  against  him  ;  but  they  have  all  the  other  effects 
which,  in  a  preceding  article,  are  ascribed  to  informal  copies. 

Art.  154.  The  ex  parte  depositions  of  witnesses  to  the  execution  of 
an  act,  under  private  signature,  give  it  no  additional  validity,  nor  are 
they  a  sufficient  warrant  for  a  notary  to  make  a  copy  in  form. 


CODE  OF  EVIDENCE.  673 


SECTION  IV. 
Of  the  form  and  effect  of  acts  under  private  signature. 

Art.  155.  GENERAL  PROVISION. — All  the  rules  contained  in  the  suc- 
ceeding section  apply  exclusively  to  acts  under  private  signature,  unless 
the  contrary  be  expressed. 


SECTION  V. 

% 

Of  the  requisites  to  an  act  under  private  signature. 

Art.  156.  An  act  under  private  signature  may  be  made  the  evidence 
of  all  kinds  of  obligations  or  declarations,  excepting  those  which  by 
law  are  directed  to  be  made  by  authentic  act  only  ;  it  must  be  signed 
with  the  names  of  those  whom  it  purports  to  obligate,  or  by  the  declar- 
ant if  it  be  a  mere  declaratory  act. 

Art.  157.  The  signature  must  be  made  at  the  end  of  the  act,  in  the 
proper  handwriting  of  the  party,  if  he  can  write ;  it  must  consist  of  the 
name  commonly  subscribed  by  such  party  to  his  other  writings;  but  no 
act  shall  be  invalidated  because  the  party  has  falsely  pretended  that  he 
could  not  write,  or  has  made  his  signature  differently  from  his  usual 
manner. 

Art.  158.  If  the  party  cannot  write,  his  signature  shall  consist  of  a 
mark  made  by  him  at  the  end  of  the  act,  in  the  presence  of  two  wit- 
nesses, and  of  his  name  written  by  one  of  them,  with  a  declaration  that 
it  is  the  mark  of  the  party.  This  signature  must  be  attested  by  that  of 
the  two  witnesses. 

Art.  159.  If  the  party  can  read,  but  from  whatever  cause,  is  unable 
to  write,  he  must,  before  affixing  his  mark,  declare  in  the  presence  of 
the  witnesses  that  he  has  read  the  instrument,  or  that  it  has  been  read 
to  him.  If  he  cannot,  read,  the  instrument  must  be  read  to  him  intelli- 
gibly by  one  of  the  witnesses  in  the  presence  of  the  other. 

Art.  160.  No  instrument,  purporting  to  be  the  act  of  a  person  who 
has  not  himself  signed  the  same  with  his  name,  shall  have  any  validity 
against  such  person,  unless  the  requisites  prescribed  by  the  last  two 
preceding  articles  have  been  complied  with,  or  the  party  shall  judicially 
avow  the  validity  of  the  act,  after  having  the  same  read  to  him  by  an 
officer  of  the  court. 

Art.  161.  If  an  act  be  defective,  for  the  want  of  any  of  the  formali- 
ties above  described,  its  execution  is  no  bar  to  a  suit  founded  on  the 
obligation  of  which  it  was  intended  as  the  evidence,  if  such  obligation 
can  be  sustained  by  other  proof. 

Art.  162.  It  is  not  necessary  to  the  validity  of  such  an  act,  that 
any  part  but  the  signature  should  be  in  the  handwriting  of  the  party 
obligated. 

Art.  163.  In  an  instrument  containing  an  obligation  respecting  mo- 
ney, or  any  other  article  of  which  the  sum,  quantity,  or  number,  is  ex- 
pi  essed  in  words  in  the  body  of  the  instrument,  and  repeated  elsewhere 
on  the  paper  in  figures,  if  there  be  any  difference  between  such  a  repe- 
tition and  the  body  of  the  instrument,  the  latter  shall  be  esteemed  the 
4  K 


674  CODE  OF  EVIDENCE. 

true  numeration,  unless  an  error  of  calculation  appears  on  the  face  of 
the  act.  If  the  numeration,  both  in  the  body  of  the  instrument  and 
out  of  it,  be  in  figures,  other  evidence  may  be  admitted  to  prove  the 
intent  of  the  parties. 

Art.  164.  Acts  containing  no  other  than  communicative,  or  other 
synallagmatlc  contracts,  must  have  the  legal  signatures  of  all  the  parties 
who,  by  the  terms  of  the  act,  are  obligated  to  each  other  thereby  ;  if 
any  of  the  signatures  of  such  parties  are  wanting,  the  act  is  invalid  as 
to  the  others. 

Art.  165.  If  the  act  purports  to  contain  communicative,  or  other 
synallagmatic  contracts,  between  certain  parties,  and  also  a  unilateral 
contract,  relative  to  the  same  thing,  by  which  they  are  jointly  bound  to 
another,  it  need  not  be  signed  by  the  party  to  whom  the  obligation  is 
made  by  the  unilateral  contract. 


CHAPTER  III. 

Ofscriptory  evidence  not  attested  by  the.  signature  of  party. 

SECTION  I. 

Of  the  different  kinds  of  unattested  scriptory  evidence. 

Art.  166.  Evidence,  coming  under  this  division,  is  of  two  kinds  : 

1.  Writings  which,  from  their  form  and  nature,  show  that  they  were 
intended  to  receive  the  signature  of  a  party,  and  are  therefore  imperfect 
without  it.     Of  this  kind  are  unsigned  contracts  of  any  kind,  declara- 
tions of  trust,  testaments,  and  codicils. 

2.  Writings  which,  from  their  nature,  do  not  appear  to  have  been 
intended  to  be  attested  by  any  signature.     Such  are  entries  in  account 
books,  family  records  of  births  and  deaths,  and  memoranda  of  other 
events. 

SECTION  II. 

Of  writings  intended  to  be  signed  by  the  parties. 

Art.  167.  Writings  of  the  first  kind  are  never  to  be  admitted  as  direct 
proof  of  the  contract,  or  disposition  of  which  they  would  have  been  the 
evidence,  if  they  had  been  perfected.  They  may  be  admitted  as  pre- 
sumptive evidence — 

1st.  Of  the  intent  to  make  the  contract,  or  disposition  in  case  where 
such  intent  is  material  to  the  issue. 

2d.   Of  the  truth  of  any  other  enunciation  contained  in  the  writings. 

3d.  Of  the  knowledge  which  the  party  making  such  writing  had  of 
any  fact  therein  stated. 

But  such  writing  cannot  be  admitted  at  all,  unless  it  is  in  the  hand- 
writing of  the  party  whose  act  it  purports  to  be,  or  is  proved  to  have 
been  made  by  his  direction,  or  to  have  been  approved  by  him  after  it 
was  made. 


CODE  OF  EVIDENCE.  675 


SECTION  III. 

Of  writings  not  intended  to  have  been  signed  by  the  parties. 

Art.  168.  Writings  of  the  second  kind  may  be  admitted  (against  the 
party  making  them)  as  presumptions  of  the  fact  they  purport  to  state, 
when  they  are  proved  to  be  in  his  handwriting,  or  to  have  been  made 
by  his  direction,  or  to  have  been  read  and  approved  by  him. 

Art.  169.  The  party  against  whom  either  of  the  two  kinds  of  unat- 
tested  writings  is  produced,  may  be  admitted  to  give  an  explanation, 
on  oath,  of  the  circumstances  under  which  the  same  were  made,  and 
the  intent  of  making  them — subject  to  cross-examination. 

Art.  170.  These  kinds  of  written  evidence  can  be  admitted  for  the 
party  who  made  them,  only  when  it  appears  that  they  were  made  at  a 
time  and  under  circumstances  which  show  that  they  were  not  intended 
to  create  legal  evidence  for  the  party  making  them. 

Art.  171.  When  any  written  evidence  is  produced,  under  the  preced- 
ing article,  the  opposite  party  may  demand  that  the  other  be  examined 
on  oath. 


SECTION  IV. 

Of  writings  not  made  by  the  parties  to  the  suit. 

Art.  172.  All  the  previous  provisions  of  this  chapter  relate  to  writ- 
ings made  by  one  of  the  parties  to  the  suit,  or  by  some  one  under  whom 
he  claims,  or  by  the  direction  of  one  of  them.  Writings  made  by 
others,  in  which  are  included  those  which  are  printed,  and  maps  and 
plans,  can  be  introduced  in  the  following  cases  : 

1st.  Historical  works — to  elucidate  any  historical  fact  that  may 
become  material  in  a  litigated  cause. 

2d.  Books  of  art  or  science — when  any  thing,  appertaining  to  the 
branch  of  learning  of  which  they  treat,  is  in  dispute. 

3d.   Maps  or  plans — to  elucidate  questions  of  locality. 

When  made  by  persons  who  had  no  interest  in  making  erroneous 
representations  to  the  prejudice  or  advantage  of  either  of  the  parties, 
and  who  are  either  dead  or  so  situated  that  their  testimony  cannot  be 
procured.  Or, 

When  legally  attested  to  be  accurate  by  the  persons  who  made  them, 
or  by  others  who  have  verified  the  delineations  they  contain. 

4th.  Accounts  stated  or  calculations  made  by  persons  who  prove 
them  to  be  accurate. 

5th.  Nautical  and  other  almanacs— whenever  the  calculations  they 
contain  are  material  to  the  issue. 


676  CODE  OF  EVIDENCE. 


TITLE  IV. 


OF  SUBSTANTIVE  EVIDENCE. 

Art.  173.  Substantive  evidence  being  that  which  arises  from  the 
existence  or  position  of  an  object  in  relation  to  the  fact  in  dispute,  it 
follows,  that  unless  it  comes  within  the  scope  of  that  evidence  which 
is  offered  to  the  senses  of  the  judge  in  the  situation  and  under  the 
circumstances  which  make  it  material  to  the  cause,  it  requires  other 
evidence  for  its  introduction.  A  bloody  dagger  is  substantive  evidence: 
if  the  judge  saw  it  in  the  hand  of  the  assassin  immediately  after  the 
blow  was  struck,  it  would  be  the  foundation  of  evidence  coming  within 
his  own  knowledge;  otherwise,  it  must  be  supported  by  testimony  to 
show  when  and  where  it  was  found,  and  the  instrument  itself  forms 
the  substantive  evidence. 

Art.  174.  The  following  are  examples  of  substantive  evidence  :  the 
mark  on  a  tree,  coinciding  with  that  stated  by  testimonial  or  scriptory 
evidence  in  cases  of  disputed  boundary,  is  substantive  evidence  of  a 
land-mark.  The  number  of  concentric  circles  in  the  wood,  that  has 
grown  over  the  mark,  is  substantive  evidence  of  the  number  of  years 
that  have  elapsed  since  it  was  made. 

The  inscription  on  a  monument  or  tombstone,  is  presumptive  evi- 
dence of  the  time  of  birth  or  death,  and  the  other  material  facts  it 
commemorates. 


TITLE  V. 


OF    PUESUMPTIVE    EVIDENCE. 

Art.  175.  Presumptions  are  of  two  kinds  :  such  as  are  the  result  of 
the  reason  only  of  the  judge,  exercised  on  the  circumstances  which  are 
proved,  without  any  express  direction  of  law  to  guide  him  in  his  con- 
clusions, which  are  called  simple  presumptions  ;  and  legal  presumptions, 
which  are  such  as  the  law  expressly  directs  to  be  drawn  from  certain 
circumstances. 

Art.  176.  The  difference  between  a  simple  and  a  legal  presumption 
is  this,  that  the  first  is  an  inference  drawn  by  the  judge,  from  the  cir- 
cumstances by  the  unrestrained  exercise  of  his  reason  ;  the  last  is  a 
deduction  made  by  the  law  itself,  which  the  judge  is  forced  to  adopt, 
whatever  may  be  his  own  conclusions  from  the  facts  : 

That  a  man  of  good  character  will  not  tell  a  falsehood  ; 

That  other  things  being  equal,  a  man  will  do  that  which  is  most 
conducive  to  his  interest  and  happiness  ; 

That  a  mother  will  not  abandon  her  infant ; 

Are  examples  of  simple  presumptions,  drawn  from  the  structure  of 
the  human  mind. 

That,  if  the  obligation  is  delivered  to  the  debtor,  the  debt  has  been 
paid  ; 


CODE  OF  EVIDENCE.  677 

That  the  rent  due  from  former  years  has  been  paid,  when  a  receipt 
is  produced  for  the  last  year  ; 

Are  other  instances  of  simple  presumptions,  drawn,  not  like  the 
former  from  nature,  but  from  the  common  course  of  business  and  affairs. 
All  these,  although  natural  conclusions,  are  simple  presumptions,  because 
there  is  no  positive  law  directing  them  to  be  drawn. 

That  the  person  who  has  been  in  the  peaceable  possession  of  real 
property  for  more  than  a  year,  is  the  owner  ; 

That,  when  no  time  is  expressed  for  the  duration  of  a  lease  of  a  pre- 
dial estate,  it  shall  be  for  a  year  ; 

Are  examples  of  legal  presumptions,  which  the  law  expressly  orders 
to  be  drawn. 

Art.  177.  The  effect  of  a  presumption,  whether  simple  or  legal,  in 
favour  of  any  affirmative  or  negative  proposition,  is,  that  the  proof  of 
such  proposition  is  considered  as  established,  until  the  contrary  is  shown 
by  direct  proof,  or  rendered  doubtful  by  other  presumptions. 

Art.  178.  When  the  party,  who  alleges  a  fact,  brings  no  evidence 
of  any  kind  to  support  it,  the  want  of  such  evidence  creates  a  presump- 
tion in  favour  of  the  party  who  denies. 

Art.  179.  When  the  existence  of  one  fact  necessarily  supposes  the 
existence  of  another,  so  that,  if  one  be  true  the  other  cannot,  in  the 
nature  of  things,  be  false,  the  induction  drawn  from  the  establishment 
of  the  first  fact  is  not  a  presumption,  but  conclusive  evidence. 

Art.  180.  The  division  of  presumptions  heretofore  known  in  our 
law,  under  the  name  of  presumpticmes  juris  et  de  jure,  is  abolished. 
Evidence,  heretofore  arranged  under  that  head,  will  be  found  in  its 
proper  division  in  this  title. 

Art.  181.  A  legal  presumption  (unless  declared  by  law  to  be  con- 
clusive) has  no  greater  force  of  itself  than  a  simple  presumption,  and 
may  be  counteracted  by  one  if  sufficiently  strong. 

Thus,  the  lease  of  a  predial  estate,  when  no  time  is  expressed,  creates 
a  legal  presumption  that  it  is  to  continue  for  a  year  ;  but  if  the  lessor, 
at  the  time  of  making  the  lease,  with  the  knowledge  and  assent  of  the 
lessee,  makes  another  to  a  third  person,  to  commence  at  the  end  of 
three  months  from  the  time  of  making  the  first,  the  first  presumption 
is  counteracted  by  the  second. 

Art.  182.   Presumptions  can  only  be  raised  from  facts,  which  appear 
by  legal  testimony  ;  therefore,  a  matter  that  cannot  be  given  in  evi- 
dence, cannot  be  a  legal  foundation  for  any  presumption. 
Art.  183.  Simple  presumptions  must  be  founded  : 
First,  on  the  establishment  of  some  fact  by  legal  testimony. 
Secondly,  by  such  deduction  from  that  fact  as  is  warranted  by  a  con- 
sideration of  the  usual  propensities  or  passions  of  human  nature  ;  by 
the  usual  course  of  business  ;  by  the  particular  habits  or  passions  of  the 
individual,  whose  act  is  in  question  ;  or  by  the  course  of  nature. 


TITLE  VI. 


OF    DIRECT   EVIDENCE. 

Art.  184.  Direct  evidence  being  that  which,  if  true,  conclusively 
establishes  the  proposition  in  question,  it  follows  that  this  kind  of  evi- 


678  CODE  OF  EVIDENCE. 

dence  gives  rise  to  one  inquiry  only,  to  wit — Whether  the  fact  be  true  ? 
The  mind  once  convinced  of  this,  has  no  other  operation  to  perform, 
in  order  to  arrive  at  the  truth  of  the  proposition  asserted,  which  must 
be  true,  if  the  evidence  be  true.  In  all  cases,  therefore,  where  any 
doubt  remains  of  the  fact  in  question,  after  the  mind  of  the  judge  is 
fully  satisfied  that  the  evidence,  offered  in  support  of  it,  is  true  ;  such 
evidence  is  not  direct,  but  presumptive  only. 

Art.  185.  Although  the  effect  of  direct  evidence,  when  established  to 
be  true,  is  conclusive  of  the  fact  in  question  ;  yet  the  truth  of  such  evi- 
dence (in  cases  where  it  is  not  declared  by  law  to  be  conclusive)  depends 
on  presumptions  more  or  less  strong.  The  declaration  of  a  witness, 
that  he  saw  the  act  in  controversy  done,  is  direct  evidence,  and  (if  the 
judge  have  no  doubt  that  the  witness  tells  the  truth)  is  conclusive. 
But  whether  the  judge  will  give  credit  to  the  witness,  must  depend  on 
the  presumptions  in  favour  of,  or  against  his  veracity,  arising  from 
character  and  other  circumstances.  Thus,  too,  the  authority  of  written 
testimony,  even  of  records,  (independent  of  positive  law,)  depends  on 
the  presumption,  that  the  witnesses  who  prove,  or  the  public  officer 
who  recorded  them,  would  not  attest  a  falsehood. 

Art.  186.  It  results,  from  the  preceding  articles,  that  direct  testimony 
(when  not  declared  by  law  to  be  conclusive)  may  be  counteracted,  not 
only  by  other  direct  contrary  evidence,  but  by  presumptions. 


TITLE  VII. 


OF  CONCLUSIVE  EVIDENCE. 


CHAPTER  I. 


Definition  and  division  of  the  different  kinds  of  conclusive  evidence. 

Art.  187.  Proof  of  any  kind  may  produce  conviction  in  the  mind 
of  the  judge  of  the  truth  or  falsity  of  any  proposition  ;  but  no  evi- 
dence is  called  conclusive  in  this  code,  but  that  which  is  declared  to 
be  such  by  it  or  by  anterior  law. 

Art.  188.  When  the  law  has  declared  that  certain  proof  forms  con- 
clusive evidence  of  any  fact,  the  judge,  whatever  may  be  his  own 
conclusion,  can  make  no  other  than  such  as  has  been  drawn  by 
the  law.  He  can  admit  no  presumptions  or  direct  proof  to  weaken 
the  effect  of  evidence,  so  declared  to  be  conclusive  ;  but  in  the  man- 
ner prescribed  by  law,  in  particular  specified  cases,  he  may  admit  evi- 
dence to  disprove  its  existence. 

Art.  189.  Conclusive  evidence  is  classed  under  several  heads  : 

First — Such  as  arises  from  the  uniform  course  of  nature. 

Second — That  which  is  expressly  declared  to  be  such  by  law. 

Third — That  which  is  produced  in  the  mind  of  the  judge  by  the 
clear  and  unequivocal  exercise  of  his  senses. 

That,  where  maternity  is  proved,  there  must  have  been  cohabitation, 
is  an  example  of  the  first  class. 


CODE  OP  EVIDENCE.  679 

Where  there  is  no  personal  incapacity,  cohabitation  is  conclusive 
proof  of  the  second  class,  that  the  issue  of  the  wife  is  the  issue  of  the 
husband. 

And  an  example  of  the  third  class  may  be  given  in  the  case  where 
the  issue  is,  record  or  no  record,  and  the  judge  decides  it  by  inspection. 

Art  190.  In  order  that  the  course  of  nature  should  be  the  found- 
ation of  conclusive  proof,  it  must  be  the  invariable  course  of  nature  ; 
its  general  course  only  gives  rise  to  presumptions.  Proof  that  an 
absentee  was  born  two  hundred  years  ago,  is  conclusive  proof  that  he 
is  dead,  because  no  instance  has  been  known  of  human  life  extended 
to  that  period.  If  it  be  shown  that  he  was  born  one  hundred  years 
before,  the  law  creates  a  presumption  of  his  death,  which  may,  how- 
ever, be  counteracted  by  proof,  because,  though  it  be  the  general 
course  of  nature  for  men  to  die  before  that  age,  it  is  not  invariable. 

Art.  191.  When  the  law,  by  the  enactment  of  positive  rules,  de- 
clares certain  evidence  to  be  conclusive,  it  is  done  to  avoid  litigation 
or  fraud,  and  prevent  the  temptation  to  perjury. 

Some  of  these  rules  are  declaratory  of  the  conclusions  drawn  from 
the  invariable  course  of  nature,  mentioned  in  the  preceding  articles  ; 
others  are  positive  provisions,  established  by  legislative  wisdom,  for 
the  object  above  stated  in  this  article. 

The  birth  of  a  child  more  than  three  hundred  days  after  the  death  of 
the  husband,  is  conclusive  proof  that  such  child  is  not  his,  and  is  an 
example  of  the  declaratory  rule  above  mentioned,  as  the  same  is  con- 
tained in  our  law  as  it  now  stands. 

The  authority  given  to  a  judgment  between  the  parties,  to  an  au- 
thentic act,  and  to  a  judicial  confession,  are  examples  of  the  positive 
rule. 


CHAPTER  II. 

Of  resjudicata. 

SECTION  I. 

What  judgments  are  valid  as  resjudicata. 

Art.  192.  Resjudicata  is  whatever  has  been  finally  decided  by  a 
court  of  competent  jurisdiction — proceeding  according  to  the  forms  of 
law — by  a  valid  sentence — on  a  matter  alleged  and  either  denied  or 
expressly  or  impliedly  confessed  by  the  other  ;  and  it  is  conclusive 
evidence  of  that  which  it  decides,  between  the  same  parties  or  those 
that  represent  them,  litigating  for  the  same  thing,  under  the  same  title, 
and  in  the  same  quality. 

Art.  193.  Such  judgment  may  be  used,  either  as  a  plea  (in  which 
case  it  bars  any  other  suit  brought  for  the  same  cause)  or  as  evidence, 
and  is  then  conclusive  of  that  which  it  decides,  under  the  modifications 
contained  in  the  following  articles. 

Art.  194.  The  decision  must  be  final,  that  is  to  say,  it  must  be  such 
as  the  court,  rendering  it,  could  not  alter,  on  the  application  of  either 
party,  or  reconsider  it  of  its  own  accord  j  therefore,  an  interlocutory 


680  CODE  OF  EVIDENCE. 

order  that  a  party  account ;  a  judgment  that  needs  confirmation; 
the  verdict  of  a  jury,  or  even  a  final  judgment,  before  it  is  signed, 
and  before  the  time  has  elapsed  within  which  it  may  be  set  aside  on 
a  motion  for  a  new  trial  or  rehearing,  has  not  the  force  of  resjudicata. 
A  judgment  appealed  from  has  not  the  force  of  resjudicata,  and  is  not 
even  presumptive  proof  ;  but  a  final  judgment,  although  the  time  for 
appealing  may  not  have  elapsed,  is  conclusive  proof  until  the  appeal 
be  made. 

Art.  195.  By  appeal,  in  this  title,  is  meant  any  legal  process  what- 
ever, by  which  the  judgment  of  an  inferior  court  may  be  reconsidered 
and  modified  or  annulled. 

Art.  196.  The  judgment,  to  form  conclusive  proof,  must  have  been 
rendered  by  a  competent  tribunal.  A  sentence,  having  all  the  other 
requisites,  is  no  proof,  if  the  person  who  rendered  it  had  no  power 
to  decide  on  the  subject  matter  in  dispute  between  the  parties  ;  but 
this  want  of  jurisdiction  must  appear  by  an  examination  of  the  pro- 
ceedings in  the  court  in  which  the  judgment  was  rendered,  and  of  the 
law  by  which  the  court  rendering  it  was  empowered  to  act :  and  no 
allegation  of  any  matter  not  appearing  from  the  said  laws  and  proceed- 
ings, shall  be  admitted  to  show  a  want  of  jurisdiction,  although  such 
allegation  would  have  deprived  the  court  of  its  jurisdiction,  had  it 
been  pleaded'and  proved  in  the  original  cause. 

Thus,  a  judgment  given  for  more  than  one  hundred  dollars  by  a 
justice  of  the  peace,  under  our  present  laws,  is  no  evidence  that  the 
defendant  owes  that  sum,  because  the  court  has  no  jurisdiction  ;  or 
that  he  owes  any  smaller  sum,  because  the  whole  judgment  is  void. 

But  a  judgment  rendered  in  a  court  of  the  United  States,  in  a  suit 
brought  by  a  person  styling  himself  an  alien  against  a  citizen  of  the 
state,  would  be  conclusive  evidence,  although  in  fact  he  was  not  an 
alien  ;  nor  can  any  evidence  of  that  fact  be  admitted  in  opposition  to 
the  judgment. 

Art.  1S7.  Where  the  court,  in  which  the  judgment  relied  on  as 
evidence  has  been  given,  is  one  of  limited  jurisdiction,  either  as  to 
sum,  person,  place,  or  the  nature  of  the  suits  of  which  it  can  take 
cognizance,  its  decisions  are  no  proof,  unless  the  circumstances  ne- 
cessary to  confer  jurisdiction  appear  on  the  record  of  the  suit. 

Art.  198.  The  courts  of  this  state  will  ex  officio  take  notice  of  the 
jurisdiction  given  to  the  different  tribunals  within  the  same  ;  but 
where  a  judgment  given  in  another  state,  or  in  a  foreign  country,  is 
relied  on,  the  production  of  the  judgment,  duly  authenticated,  is  pre- 
sumptive evidence  that  the  court  had  a  competent  jurisdiction,  unless 
the  contrary  appear  on  the  record  ;  bnt  such  presumption  may  be 
removed  by  showing  the  want  of  jurisdiction  by  such  evidence  as  is 
allowed  by  law. 

Art.  199.  Whenever  a  judgment  is  offered,  either  as  presumptive 
or  conclusive  evidence,  all  the  proceedings  in  the  suit,  in  which  such 
judgment  was  rendered,  must  be  produced. 

Art.  200.  Every  judgment  to  operate  as  evidence  of  the  thing  judged, 
must  have  been  rendered  in  the  forms  which  are  prescribed  by  law,  in 
order  to  give  validity  to  the  judgment,  unless  the  matter  which  is 
alleged  as  want  of  form  has  been  either  impliedly  or  expressly  assented 
to  by  the  party  who  alleged  it 

Thus,  the  want  of  a  citation  is  a  defect  that  would  render  the  judg- 
ment void  j  but  if  the  party  has  expressly  acknowledged  service  of  the 


CODE  OF  EVIDENCE.  681 

petition,  or  impliedly  waived  the  necessity  of  a  citation,  by  putting  in 
an  answer,  this  shall  not  be  made  an  objection. 

Art  201.  The  want  of  form,  prescribed  by  law  for  the  validity  of  a 
judgment,  must  (in  order  to  bar  its  operation  as  resjudicata)  be  such  as 
is  apparent  on  the  face  of  the  record.  No  other. evidence  can  be  re- 
sorted to,  in  order,  to  prove  any  such  defect. 

Art.  202.  A  sentence  to  produce  the  effect  of  resjudicata,  must  not 
only  have  been  rendered,  but  must  be  in  itself  valid,  according  to  the 
forms  of  law. 

Art.  203.  Judgments  may  be  erroneous  and  unjust  without  being 
invalid,  within  the  purview  of  the  last  article.  Whether  the  error  be 
in  the  construction  of  law,  or  the  deduction  from  fact,  the  judgment 
is  valid,  unless  appealed  from  ;  but  an  invalid  judgment  is  one  that 
appears  on  the  face  of  it  to  be  void. 


SECTION  II. 

What  judgments  are  invalid  to  produce  the  effect  of  resjudicata. 

Art,  204.  Judgments,  under  the  following  circumstances,, are  not 
valid  under  the  preceding  articles  : 

1st.  When  the  judgment  is  uncertain,  and  is  not  rendered  certain  by 
some  part  of  the  record.  Thus,  a  judgment  that  the  defendant  pay  the 
damages  which  the  plaintiff  sustained,  is  uncertain;  but  if  the  judgment 
had  been  to  recover  what  the  plaintiff  demanded,  it  would  be  rendered 
certain,  by  referring  to  the  plaintiff's  demand.  If  it  were  to  recover 
damages  as  A.  should  determine,  it  would  not  be  void,  but  could  not 
operate  as  resjudicata  for  another  reason,  because  such  judgment  would 
not  be  final. 

2d.  When  the  judgment  pronounces  something  expressly  contrary 
to  the  law  ;  by  which  is  meant,  when  it  declares  that  what  is  acknow- 
ledged by  all  to  be  law,  shall  not  be  observed  :  as  if  on  a  plea  of  infancy, 
to  avoid  a  contract,  it  should  declare,  that  because  the  defendant  was 
twenty  years  of  age,  he  should  be  bound.  But  a  decision  on  the  con- 
struction of  law  is  still  binding,  although  the  judge  may  have  been 
wrong  in  his  construction.  Nor  is  the  force  of  a  judgment  lessened, 
although  the  evidence  should  not  warrant  the  conclusion  drawn  by  the 
judge. 

3d.  When  there  is  an  evident  error  of  calculation  appearing  in  the 
judgment  itself :  as  if  in  a  suit  for  the  value  of  three  hogsheads  of  sugar, 
the  sentence  should  be,  that  the  defendant  pay,  at  the  rate  of  $70  per 
hogshead,  the  sum  of  250  dollars. 

4th.  Where  the  judgment  is  contrary  to  the  judicial  confession  of 
the  party  in  the  same  suit :  as  if  the  decree  should  declare,  that  a  de- 
fendant should  go  quit  of  a  debt  demanded  by  the  plaintiff,  and  which 
the  defendant  had  confessed  in  his  answer  to  be  due. 

5th.  Where  the  decree  is  given  against  one  not  a  party  to  the  suit. 

6th.  Where  the  judgment  has  been  rendered  against  one  who  appears 
in  the  suit  to  be  a  minor,  or  other  person  who  is  not,  by  law,  competent 
to  defend  his  own  interests  without  the  intervention  of  his  curator  or 
tutor,  or  other  person  designated  by  law  to  watch  over  his  interest. 
This  rule  includes  married  women,  who  appear  without  being  author- 
4  L 


682  CODE  OF  EVIDENCE. 

ized  by  their  husbands,  or  by  the  court,  in  cases  in  which  authorization 
is  required. 

7th.  Where  the  party  can  show,  in  the  manner  hereinafter  prescribed, 
that  the  judgment  has  been  obtained  by  forgery  or  fraud,  and  the  party 
had  no  notice  in  time  to  avail  himself  of  the  objection  in  the  court  where 
the  judgment  was  rendered. 

Art.  205.  The  judgment  must  also  be  in  a  matter  alleged  by  the 
parlies  in  the  suit  in  which  it  is  given.  Thus,  if  the  demand  be  for  one 
acre  of  land,  and  the  judgment  is  that  the  plaintiff  recover  three  acres, 
this  judgment  would  be  neither  conclusive  evidence  of  his  title  to  the 
two  additional  acres,  nor  a  bar  to  the  defendant  if  he  should  sue  to 
recover  them. 

Art.  206.  It  is  not  sufficient  that  the  matter  on  which  the  judgment 
is  given  be  alleged  by  one  party;  it  must  also  be  denied  or  admitted  by 
the  other  party:  but  a  general  denial  of  all  facts  alleged,  is  sufficient  for 
this  purpose,  without  specially  negativing  the  several  facts  alleged. 

Art.  207.  The  denial  or  admission,  referred  to  in  the  last  two  pre* 
ceding  articles,  may  be  either  express  or  implied.  A  denial  of  the 
fact  in  question  is  implied  when  it  is  a  necessary  consequence  from  the 
denial  of  another  fact.  Thus,  a  denial  that  the  party  was  ever  indebted, 
is  an  implied  denial  of  the  charge  of  a  sum  alleged  to  be  due  for  interest; 
but  an  allegation  that  the  principal  sum  has  been  paid,  is  no  negative  of 
the  interest  being  due. 

Art.  208.  A  refusal  or  neglect  to  answer  in  the  time  prescribed  by 
the  rules  of  procedure,  creates  an  implied  admission  of  the  allegations 
to  which  the  answer  is  required.  Therefore,  a  judgment  by  default, 
rendered  definitively,  is  resjudicata,  although  the  fact,  on  which  it  is 
pronounced,  was  neither  expressly  denied  or  admitted. 

Art.  209.  A  judgment  absolving  a  party  from  that  which  he  has 
judicially  confessed  to  be  due  in  the  same  suit  (provided  such  confession 
has  not  been  set  aside)  is  not  resjudicata  in  favour  of  the  person  making 
the  confession. 

Art.  210.  Such  judgment  as  is  described  in  the  foregoing  articles  is 
conclusive;  that  is,  it  is  a  bar  when  pleaded,  and  conclusive  proof  when 
offered  in  evidence,  of  that  which  it  decides  ;  but  of  nothing  else  con- 
tained in  such  judgment :  therefore,  nothing  alleged  by  way  of  induce- 
ment, illustration,  argument,  or  example,  in  giving  the  judgment,  has 
the  force  of  a  judgment. 

Art.  211.  The  pleadings  in  each  cause  are  the  only  evidence  of  what 
was  alleged,  and  denied,  or  confessed,  and  the  decisory  part  of  the 
judgment  of  that  which  was  decided. 


SECTION  HI. 
Against  whom  the  resjudicata  may  be  given  in  evidence. 

Art.  212.  The  effect  of  resjudicata  is  confined  to  the  parties  in  the 
suit,  or  to  those  who  succeed  to  their  interest.  There  are,  however, 
exceptions  to  this  rule,  which  will  be  particularly  noticed. 

Art  213.  Parties  are  those  only  who  appear  in  the  suit  and  allege 
or  answer ;  who  have  been  cited  in  the  manner  prescribed  by  law, 
although  they  do  not  appear  or  answer,  or  who  have  intervened  in  the 
suit  to  contest  or  prosecute  the  same. 


CODE  OF  EVIDENCE.  683 

Art.  214.  No  person  can  be  concluded  by  a  judgment,  although  a 
party  to  it,  unless  for  the  amount  of  the  interest,  which,  at  the  time  of 
rendering  such  judgment,  he  had  or  claimed  in  the  matter  in  contro- 
versy. No  interest  accruing  after  such  judgment,  by  any  party,  is 
affected  by  it.  Thus,  if  the  heir  or  executor  sue  one  for  effects  belong- 
ing to  the  succession,  and  it  should  appear  that  the  defendant  had  no 
property  belonging  to  the  estate,  and  judgment  be  thereupon  rendered 
in  his  favour,  this  judgment  shall  be  no  bar  to  a  subsequent  suit,  against 
the  same  defendant,  who  may  afterwards  have  got  possession  of  part  of 
the  estate. 

Art.  215.  But  every  person  cited  to  show  what  right  he  has  in  any 
matter  in  controversy,  is,  as  to  the  other  parties  in  such  suit,  and  as  to 
any  claims  he  may  then  have,  bound  by  the  judgment  rendered  therein, 
although  he  do  not  set  forth  his  right. 

Art.  216.  Not  only  the  parties,  but  those  who  succeed  to  the  interests 
in  the  subject  in  controversy,  are  bound  by  the  judgment;  but  they  must 
succeed  to  them — that  is,  they  must  hold  or  claim  under  them.  Thus, 
the  sentence  against  the  ancestor,  binds  the  heir — against  the  seller, 
binds  the  purchaser;  but  a  sentence  against  or  in  favour  of  the  possessor, 
does  not  bind  him  who  recovers  the  property  from  such  possessor,  or 
acquire  it  in  any  other  manner,  which  does  not  suppose  the  property 
to  have  been  in  him  at  the  time  of  such  judgment. 

Art.  217.  Every  one  is  a  party  to  a  suit  who  appears  as  such,  either 
in  person,  by  a  mandatory  duly  constituted,  or  by  an  attorney  at  law 
duly  licensed  to  practice  in  the  court  in  which  the  suit  is  pending  and 
employed  by  him  ;  and  it  shall  be  presumptive  evidence  that  such 
attorney  at  law  was  employed  by  the  party,  if  he  had  in  his  hands  the 
papers  necessary  for  the  prosecution  or  defence  of  the  cause,  or  if  the 
party  knew  that  such  suit  was  prosecuted  or  defended  in  his  name, 
and  did  not  disavow  the  attorney  in  such  court. 

Art.  218.  To  be  bound  by  a  judgment,  it  is  not  sufficient  to  have 
been  a  party  to  the  suit  only,  but  to  the  judgment ;  therefore,  a  party 
who,  before  the  judgment,  is  allowed  to  discontinue — whose  name  is 
struck  out  of  the  proceedings — who  is  otherwise  dismissed  before  a 
hearing  on  the  merits — or  who,  on  the  hearing,  is  dismissed  as  having 
improperly  been  made  a  party — is  not  bound  by  a  judgment  afterwards 
rendered  ;  but  if  the  order  of  dismissal  be  appealed  from  and  reversed, 
and  such  party's  name  is  afterwards  reinstated  in  the  pleadings,  he  shall 
be  bound  by  the  judgment. 

Art.  219.  A  judgment  on  an  appeal  against  the  party  in  the  original 
suit,  who  has  neither  cited,  nor  appeared,  nor  in  any  manner  waived  a 
citation  in  such  court  of  appeals,  is  not  resjudicata  against  such  party. 

Art.  220.  The  exceptions  to  the  rule,  that  none  but  parties  to  a 
judgment  are  bound  by  it,  are  the  following  : 

1st.  Where  a  suit  has  been  brought  for  the  purpose  of  determining 
a  right  of  common  or  servitude  claimed  by  several  persons,  either  by 
one  or  against  one  or  more  of  the  persons  claiming  such  right,  the  judg- 
ment shall  be  conclusive  for  or  against  all  the  other  commoners  or 
persons  claiming  the  same  servitude  or  right  of  common,  under  the 
same  title  ;  but  not,  if  they  claim  under  a  different  title. 

2d.  When  a  public  or  private  corporation,  or  body  politic,  shall 
claim  a  right  of  laying  or  receiving  any  toll,  tax,  duty,  wharfage,  ton- 
nage, or  any  other  contribution  or  imposition  whatever,  a  judgment 
rendered  in  a  suit  to  try  the  legality  of  such  claim,  between  the  said 


684  CODE  OF  EVIDENCE. 

corporation  or  body  politic  and  any  individual  interested  therein,  shall 
be  conclusive  as  to  the  right  of  such  public  or  private  corporation  or 
body  politic. 

Provided,  that  in  the  two  cases,  above  mentioned  in  this  article,  the 
decision  shall  not  be  conclusive,  except  against  those  who  are  indi- 
vidually made  parties,  unless  two  concurring  judgments  have  been 
pronounced  on  the  same  right ;  in  which  case  the  judgment  shall  be 
resjudicata  as  to  all ;  but  if  the  servitude  claimed  be  indivisible,  a  single 
judgment  is  conclusive. 

3d.  A  judgment  against  a  principal  debtor  shall  bind  his  surety, 
although  he  be  no  party  to  it ;  and,  in  like  manner,  a  judgment  in 
favour  of  the  principal  shall  be  conclusive  evidence  for  the  security. 

4th.  If  one  who  has  acquired  by  purchase,  donation,  exchange,  or 
any  other  contract,  suffers  the  former  proprietor  to  prosecute  or  defend 
a  suit  affecting  such  property,  the  person  so  acquiring  such  property, 
having  notice  of  such  suit,  he  shall  be  bound  by  the  judgment,  if  it  be 
given  against  the  former  proprietor,  although  he,  the  purchaser,  be  no 
party  ;  but  a  judgment  given  in  favour  of  the  former  owner,  in  such 
suit,  shall  not  prejudice  the  title  of  the  true  owner.  The  same  rule 
applies  to  the  creditor,  who  suffers  the  owner  of  property,  who  has 
pledged  or  mortgaged  it  to  him,  to  litigate  respecting  it  with  his  know- 
ledge. In  this  case,  the  creditor  shall  be  bound  to  the  amount  of  his 
interest  by  the  judgment  given  against  the  owner  ;  and,  in  like  manner, 
if  the  owner  of  the  property  pledged  or  mortgaged  suffers  the  creditor 
to  litigate  respecting  it,  he  shall  be  bound  by  the  sentence. 

Provided,  that  the  said  judgments,  mentioned  in  this  article,  be  ren- 
dered on  a  fair  contestation  of  the  right,  and  not  collusively,  or  by 
default  or  confession  ;  and  therefore,  in  any  such  case,  the  party  against 
whom  any  such  judgment  is  opposed,  either  as  an  exception  or  evidence, 
may  show  that  it  was  entered  by  collusion,  and  defeat  its  effect. 

Art.  221.  There  are  no  other  causes  than  those  expressed  in  the  last 
preceding  article,  in  which  one  who  is  not  a  party  to  a  judgment,  or 
who  does  not  succeed  to  the  rights  of  those  who  were  parties  to  it,  is 
bound  thereby. 

Art.  222.  Where,  in  a  suit  brought  by  one  plaintiff,  judgment  has 
been  given  against  him,  and  he  afterwards  brings  another  suit  for  the 
same  cause  of  action  jointly  with  another,  the  former  judgment  shall  be 
conclusive  against  the  former  plaintiff",  if  his  interest  be  a  divisible  one, 
and  under  the  same  title  with  that  brought  in  question  in  the  former 
suit.  If  his  interest  be  indivisible,  or  if  ths  last  claim  is  under  a  differ- 
ent title,  the  former  judgment  is  not  conclusive. 

Art.  223.  To  give  a  judgment  the  force  of  resjudicata,  when  pleaded 
or  offered  in  evidence  in  another  cause,  it  must  appear  that  the  subject 
matter  in  controversy,  in  both  causes,  is  the  same.  If  it  be  essentially 
the  same,  although  demanded  in  a  different  form,  the  judgment  is  con- 
clusive. Thus,  if  a  personal  action  is  brought  on  a  debt  due  by  mortgage, 
and  it  be  decided  that  nothing  is  due,  this  judgment  is  a  bar  to  a  sub- 
sequent hypothecary  suit  for  the  same  debt.  In  like  manner,  if  the 
first  suit  be  a  hypothecary  action,  and  the  decision  is  that  nothing  is 
due  to  the  plaintiff,  such  judgment  shall  bar  a  personal  suit  for  the 
same  thing. 

Art.  224.  There  are,  however,  exceptions  to,  and  modifications  of, 
the  rule  contained  in  the  last  article,  as  follows  : 

1st.   Where  the  matter  in  dispute  is  an  aggregate  body,  of  which 


CODE  OF  EVIDENCE.  685 

the  parts  are  changeable  by  nature,  without  changing  the  character  of 
the  whole.  Thus,  a  judgment  relative  to  a  flock,  is  conclusive  between 
the  parties,  although  the  individual  animals  composing  the  flock  may 
not  be  the  same  at  the  time  of  both  suits. 

2d.  Where  the  party,  who  has  failed  in  a  demand  for  the  whole, 
shall  afterwards  bring  a  suit  for  a  part,  the  first  judgment  is  a  bar ;  and 
this,  whether  the  controversy  be  for  a  certain  price  of  property,  a  sum 
of  money,  or  an  incorporeal  right.  Thus,  if  a  suit  be  brought  for  a 
tract  of  land,  and  judgment  be  rendered  for  the  defendant,  the  judg- 
ment will  be  a  bar  to  an  action  brought  under  the  same  title  for  any 
part  of  the  same  land,  either  for  an  undivided  part,  or  for  a  certain 
designated  portion.  The  same  rule  applies  where  a  suit  is  brought  for 
two  separate  pieces  of  property  and  judgment  be  rendered  for  the  de- 
fendant, the  plaintiff  cannot  afterwards  sustain  a  suit  for  either  of  them 
separately.  The  rules  laid  down  under  this  second  head  also  apply  to 
the  defendant ;  if  the  judgment  be  rendered  against  him  for  the  whole, 
he  can  never  sustain  an  action  for  any  of  the  parts  separately. 

3d.  Where  a  suit  has  been  brought  for  a  distinct  part  and  under  a 
PARTICULAR  TITLE,  and  a  demand  is  afterwards  made  for  the  whole, 
the  judgment,  in  the  first  suit,  is  resjudicata  only  for  that  part  which 
was  in  controversy  in  the  first  suit.  But  if  the  first  judgment  were  for 
a  demand  for  a  part,  under  a  UNIVERSAL  TITLE,  such  judgment,  if 
against  the  plaintiff,  is  no  bar  to  the  suit  for  the  whole. 

4th.  There  is  an  exception  to  the  second  rule  of  this  article,  in  the 
case  of  a  suit  brought  in  the  cases  allowed  by  law  for  the  materials 
which  have  been  employed  in  the  construction  of  a  house.  This  de- 
mand is  not  barred  by  a  judgment  given  against  the  plaintiff  in  a  suit 
brought  by  him  for  the  house. 

Where  what  is  demanded  by  the  second  suit,  although  not  the  same 
with  that  which  was  the  subject  of  litigation  in  the  first,  yet  is  incident 
to,  or  grows  out  of  it,  or  by  law  belongs  to  him,  who  is  the  owner  of 
that  which  was  the  object  of  the  first  suit.  There  the  first  judgment 
is  a  bar  to  the  second  suit.  For  example  : 

It  having  failed  in  a  demand  of  a  female  slave,  the  plaintiff  should, 
under  the  same  title  and  by  virtue  of  the  law  which  gives  the  issue  of 
a  female  slave  to  the  owner  of  the  mother,  claim  a  child  born  of  such 
slave. 

Or,  if  in  a  demand  for  a  principal  sum  it  has  been  adjudged  that  it 
was  never  due,  the  same  plaintiff  should  sue  for  the  interest  of  such 
sum.  In  both  these  cases  the  first  judgment  would  bar  the  second  suit, 
although  the  demand  was  not  for  the  same  thing.  But  if  in  the  first 
example,  the  child  was  claimed,  not  by  virtue  of  the  principle  of  law 
which  gives  the  issue  of  a  slave  to  the  owner  of  the  mother,  but  by 
some  other  title,  even  by  virtue  of  a  sale  by  which  both  the  mother  and 
child  were  conveyed,  the  judgment  in  the  first  suit,  by  which  the  mo- 
ther was  demanded,  is  no  bar  to  the  second.  And  in  the  second  exam- 
ple, if  the  judgment  in  the  firs!  suit  had  been,  not  that  the  capital  had 
never  been  due,  but  only  that  it  had  been  paid,  then  the  first  judgment 
is  no  bar  to  the  second  suit,  under  the  law  relative  to  resjudicata ;  but 
it  is  a  bar  under  another  principle,  that  to  avoid  circuity  of  actions  the 
right  to  interest  shall  always  be  determined  in  the  same  suit  by  which 
the  principal  is  demanded.  Thus,  too,  a  judgment  settling  the  title  to 
land,  is  a  bar  to  a  subsequent  suit  for  alluvial  soil  added  to  it  since,  or 
to  a  claim  for  trees  which  have  been  cut,  demanding  them  as  the 


686  CODE  Ol'  EVIDENCE. 

growth  of  the  land,  by  virtue  of  the  same  title  under  which  the  land 
was  claimed. 

5th.  Whenever  the  thing  demanded  by  a  second  suit  is  so  included 
in  that  which  was  decided  by  a  former  judgment,  that  the  decree 
rendered  must  confirm  or  annul  that  which. was  given  in  the  first, 
then,  although  the  same  thing  be  not  nominally  demanded,  yet  the 
first  judgment  shall  be  considered  as  resjudicata  between  the  parties. 

For  example — If,  in  one  suit  respecting  a  servitude  of  view,  it  has 
been  determined  that  the  party  has  no  right  to  raise  his  wall  ten  feet, 
this  judgment  will  bar  a  claim  to  raise  his  wall  twenty  feet ;  for,  if 
the  second  judgment  should  be  against  the  right  claimed  in  the  second 
suit,  it  affirms  the  judgment  given  in  the  first ;  if  it  allows  the  right, 
it  annuls  the  first  decision. 

6th.  In  determining  whether  the  same  thing  be  demanded  by  a 
second  action,  courts  must  determine  by  the  substance,  not  the  form 
of  the  demand.  Thus,  if  judgment  be  rendered  on  a  written  obliga- 
tion for  the  payment  of  money,  this  judgment  shall  be  a  bar  to  a  sub- 
sequent suit  for  money  lent,  founded  on  the  same  transaction,  unless, 
in  this  case,  the  obligation  be  declared  void  for  some  reason  not  affect- 
ing the  original  cause  of  action. 

7th.  But  if  a  plaintiff  fails  in  a  suit,  because  he  has  mistaken  the 
manner  in  which  it  ought  to  have  been  brought,  such  judgment  is  no 
bar  to  a  suit  brought  in  the  proper  form  for  the  same  thing. 

Art.  225.  A  judgment  on  a  claim  of  ownership,  or  for  possession 
of  property,  is  no  bar  to  a  suit  for  a  usufruct  or  servitude,  or  use  on 
the  same  land.  Nor  is  a  judgment  on  a  claim  for  such  usufruct,  servi- 
tude, or  use,  any  bar  to  a  suit  for  the  property  or  possession. 

Art.  226.  A  judgment  in  a  suit  for  possession  is  no  bar  to  a  suit  for 
the  property  ;  but  a  recovery  in  a  suit,  where  both  property  and  pos- 
session are  claimed,  is  a  bar  to  a  subsequent  suit  for  possession. 

Art.  227.  A  judgment  in  a  suit  for  one  species  of  servitude  is  not  a 
bar  to  a  suit  for  different  servitude,  although  that  which  was  first  de- 
manded, may  include  the  last.  Thus,  a  suit  for  a  right  of  footway 
is  not  barred  by  a  judgment  that  the  party  claiming  it  had  no  right  to 
a  servitude  for  the  passage  of  cattle. 

Art.  22S.  Another  requisite  to  the  conclusiveness  of  a  judgment 
is,  that  the  thing  demanded  must,  in  both  suits,  be  not  only  the  same, 
but  demanded  under  the  same  title. 

Art.  229.  The  last  requisite  to  give  effect  to  a  decision  as  resjudi- 
cata is,  that  the  parties  should,  in  both  suits,  prosecute  or  defend  in 
the  same  quality  ;  if  in  the  first  suit,  the  party,  against  whom  the 
judgment  is  opposed  or  defended,  sued  as  executor,  curator,  tutor, 
attorney  in  fact,  or  garnishee,  and  in  the  second  appeared  in  his  own 
name,  the  judgment  can  neither  be  a  bar,  nor  evidence  for  or  against 
him,  although  the  same  thing  be  the  object  of  the  suit,  and  it  be 
against  the  same  party. 

Art.  230.  Yet,  if  a  quality  be  assumed  or  given  in  either  suit  which 
would  make  no  alteration  in  the  party's  right,  the  judgment  shall  have 
its  effect  as  a  bar  or  as  evidence.  As  if  a  man  bring  a  suit,  on  a  pro- 
mise made  to  him  personally  by  another,  or  for  personal  injury  done 
to  him,  and  in  such  suit  call  himself  heir  or  executor  of  another, 
or  give  other  of  those  qualities  to  the  defendant,  judgment  in  such 
suit  would  be  conclusive  in  another,  which  might  be  brought  for  the 


CODE  OF  EVIDENCE.  687 

same  cause,  unless  the  first  judgment  were  given  as  an  exception 
taken  to  the  quality  assumed,  and  not  on  the  merits. 


CHAPTER  III. 


Of  confession. 

Art.  231.  Confession  in  relation  to  the  manner  in  which  it  is  made 
is,  either  judicial  or  extra  judicial.  In  relation  to  its  nature,  it  is 
either  full  or  partial  only. 

Art.  232.  A  judicial  confession  is  that  which  is  made  by  a  party  in 
some  writing  forming  part  of  the  proceedings  in  a  cause,  or  which  is 
made  before  a  person  authorized  by  law  to  receive  the  same,  and  re- 
duced to  writing  by  him,  or  under  his  authority,  in  the  manner  pre- 
scribed by  law.  Extra  judicial  confessions  are  those  which  are  made 
in  any  other  manner. 

Art.  233.  Full  confession  is  that  which  acknowledges  the  fact 
alleged,  with  all  its  material  circumstances,  so  as  to  leave  nothing  to  be 
supplied  by  other  evidence.  Partial  confession  is  that  which  acknow- 
ledges some  circumstance  from  which  an  inference  may  be  drawn  to 
operate  as  presumptive  evidence. 

Art.  234.  In  civil  cases,  every  proceeding  being  usually  made  with 
due  deliberation  and  a  knowledge  of  facts,  a  judicial  confession,  whe- 
ther full  or  partial,  is  conclusive  evidence  of  what  is  so  confessed,  but 
with  the  following  provisions  to  guard  against  error. 

1.  Whenever  a  judicial  confession  has  been  made  by  the  party  him- 
self, which  on  reflection  he  deems  to  be  erroneous,  he  may  on  appli- 
cation within  a  time  which  the  judge  shall  deem  reasonable,  and  on 
showing  cause  to  his  satisfaction,  obtain  leave  to  amend  such  confess- 
ory  proceeding. 

2.  When  the  confession  has  been  made  by  an  attorney  or  agent, 
such  amendment  shall  be  of  course,  if  the  party  shall  without  unne- 
cessary delay,  after  the  proceeding  comes  to  his  knowledge,  state  the 
error  on  oath,  and  apply  to  have  the  same  amended. 

3.  The  condition  of  such  amendments  shall  always  be,  that  the  ad- 
verse party  shall  be  paid  all  costs  and  expenses  he  may  have  incurred 
in  consequence  of  the  error,  and  have  time  allowed  him,  if  he  require 
it,  to  supply  other  evidence  of  the  facts  at  first  confessed. 

Art.  235.  In  criminal  cases,  no  confession,  whether  full  or  partial, 
is  conclusive  evidence  to  the  jury  on  a  trial.  The  answer  of  "  guilty" 
to  the  charge,  if  persevered  in  after  the  admonition  and  inquiry  here- 
inafter directed,  is  such  evidence  as  justifies  the  court  in  pronouncing 
sentence,  without  the  intervention  of  a  jury. 

Art.  236.  When  the  accused,  on  his  arraignment,  shall  plead 
«  guilty,"  it  shall  be  the  duty  of  the  court  to  admonish  him  of  the  con- 
sequences of  such  answer,  and  to  inquire,  as  well  from  him  as  from 
others,  and  particularly  if  he  be  in  custody  from  the  officer  having 
charge  of  him,  whether  his  acknowledgment  has  been  produced  by 
any  threat  or  promise  ;  and  also  when  there  is  any  reason  to  suppose 
insanity  or  imbecility  of  mind,  to  inquire  into  that  fact. 

Art.  237.  In  all  other  cases  of  a  full  or  partial  confession,  whether 


688  CODE  OF  EVIDENCE. 

judicial  or  extra  judical,  the  accused  may  show,  to  avoid  the  effect  of 
such  confession,  not  only  by  other  evidence  that  it  was  not  true,  but 
that  it  was  produced  by  error,  by  threats,  promises,  false  hopes,  con- 
fusion of  mind,  or  any  other  efficient  cause.  And  in  every  such  case, 
the  confession  is  to  have  such  weight  as  the  judges  of  the  fact  shall, 
in  their  discretion,  give  to  it,  under  a  consideration  of  all  the  circum- 
stances of  the  case. 

Art.  238.  In  all  cases  the  whole  confession  must  be  taken  together; 
that  is  to  say,  every  thing  said,  done,  .or  written,  at  the  time  of  the 
confession,  tending  to  enlarge,  restrict,  or  modify  it,  must  be  re- 
ceived as  part  of  the  evidence. 


CHAPTER  IV. 

Of  estoppels. 

Art.  239.  There  being  no  other  conclusive  evidence  than  in  the 
cases  especially  provided  for  by  the  legislative  authority  of  this  state, 
that  species  of  conclusive  evidence  known  in  the  English  law  of  evi- 
dence by  the  name  of  (t  Estoppel,"  is  abolished,  and  can  operate  as 
direct,  or,  according  to  its  nature,  presumptive,  evidence  only. 


GENERAL  PROVISION. 

Art.  240.  Nothing  in  this  Code  contained  shall  be  so  construed  as 
to  dispense  with  the  proof  required  by  the  Civil  Code,  or  other  sta- 
tutes, to  give  effect  to  certain  contracts,  or  testamentary  or  other  dis- 
positions, or  to  enforce  the  registry  or  recording  of  certain  acts,  or  to 
prove  legitimacy  or  filiation,  legitimation  or  civil  condition. 


A  CODE  OF  REFORM  AND  PRISON 
DISCIPLINE. 


4  M 


INTRODUCTORY  TITLE. 


CHAPTER  I. 


Design  of  the  code  of  reform  and  prison  discipline. 

Art.  1.  The  Code  of  Reform  and  Prison  Discipline  will  regulate  the 
manner  in  which  prisoners  of  different  descriptions  are  to  be  confined 
and  treated,  as  well  before  as  after  judgment. 

Art.  2.  This  Code  is  intended  not  only  to  direct  the  structure  and 
police,  of  the  prison  for  the  confinement  of  convicts,  but  also  of  those 
which  are  rendered  necessary  for  the  detention  of  the  accused  before 
trial,  for  the  education  of  juvenile  offenders,  and  of  a  House  of  Refuge 
and  employment  for  those  who  have  undergone  the  sentence  of  the  law. 
All  these  objects  are  necessarily  connected  :  no  one  part  can  be  ab- 
stracted without  materially  injuring  the  effect  of  the  others. 

Art.  3.  Safe  custody  is  an  object  common  to  the  prisons;  but  reform 
is  the  intent  of  all  the  institutions.  Punishment  also  enters  into  the 
design  of  the  Penitentiary,  the  School  of  Reform,  and  that  department 
of  the  House  of  Detention  destined  to  receive  those  convicted  of  mis- 
demeanors ;  but  forms  no  part  of  the  system,  so  far  as  it  applies  to  the 
custody  of  the  accused  before  trial,  and  to  their  relief  and  employment 
after  having  suffered  the  sentence  of  the  law. 

Art.  4.  In  all  these  establishments  the  means  by  which  reformation 
is  expected,  are,  reflection,  instruction,  habits  of  industry,  and  religion. 
To  promote  these  is  one  of  the  first  duties  of  the  men  who  are  charged 
with  the  important  and  honourable  task  of  superintending  the  different 
departments  of  these  institutions. 

Art.  5.  Reformation  cannot  be  expected  while  the  vicious  are  per- 
mitted to  associate  wilh  each  other  or  with  the  innocent.  This  kind  of 
seclusion,  therefore,  is  a  protection  not  a  punishment;  and  is  conse- 
quently necessary  in  the  House  of  Detention  and  Refuge,  as  well  as  in 
the  Penitentiary  and  School  of  Reform. 

Art.  6.  All  the  officers  appointed  under  this  Code,  from  the  inspector 
to  the  under-keeper,  have  a  moral  as  well  as  a  legal  duty  to  perform. 
In  no  department  of  the  government  is  there  a  greater  call  for  the  best 
qualities  of  the  mind — a  strong  moral  sense  and  unfeigned  belief  in 
religion  (for  they  must  be  teachers  of  both,)  firmness  in  preserving 
order,  moderation  and  temper  in  enforcing  it,  close  attention  to  dis- 
cover the  evil  propensities  that  have  led  to  the  crimes  of  the  convicts, 
and  a  knowledge  of  human  nature  to  apply  the  proper  correctives.  The 
officers  of  a  prison  are  no  longer  jailors  and  turnkeys  charged  with  the 
custody  of  the  body  only  ;  they  must  minister  to  the  diseased  mind? 
and  correct  the  depraved  habits  of  their  patients.  The  law  raises  them 


692  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

to  their  true  station.  They  have  higher  functions,  and  on  the  manner 
in  which  they  shall  perform  them  depends  the  success  of  the  whole 
system  to  which  this  Code  is  intended  to  give  vigour  and  effect. 

Art.  7.  This  view  of  the  intent  of  the  law  and  of  what  it  expects 
from  the  ministers  who  are  to  execute  it,  are  placed  at  the  introduction 
of  the  Code  to  impress  them  with  a  true  view  of  the  spirit  which  dic- 
tated it,  and  direct  them,  in  those  points  in  which  the  law  may  be  made 
more  efficacious,  by  a  zealous  and  enlightened  performance  of  their 
several  duties. 

Art.  8.  From  the  magistrates  and  others,  who  are  constituted  visiters, 
much  also  is  expected  ;  the  right  given  by  this  Code  is  not  intended  as 
a  complimentary  privilege,  conferred  only  to  satisfy  curiosity.  Pub- 
licity and  the  superintending  care  of  upright  magistrates  and  intelligent 
men,  is  the  best  incentive  to  a  zealous  performance  of  duty.  Faithful 
and  active  officers  will  court  their  investigation  ;  those  who  are  negli- 
gent or  corrupt,  will  fear  it. 

Art.  9.  The  progress  of  reform  in  the  female  department  will  depend 
chiefly  on  those  of  their  own  sex,  who  may  accept  the  invitation  given 
by  the  law,  to  carry  their  example  and  precept,  and  persuasive  exhorta- 
tion to  the  place  of  punishment,  and  convert  it  into  a  school  for  religion, 
industry,  and  virtue. 


CHAPTER  II. 

Division  of  the  work. 

Art.  10.  This  Code  is  divided  into  three  books.  The  first  treats  of 
the  different  places  of  confinement,  their  construction,  and  officers ;  the 
second  directs  the  treatment  of  the  persons  confined  ;  and  the  third 
contains  the  regulations  for  the  House  of  Refuge. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  693 


BOOK  I. 


PLACES  OF  CONFINEMENT— OF  THEIR  CONSTRUCTION  AND  OFFICERS. 


TITLE  I. 


OF  PLACES  OF  CONFINEMENT. 


CHAPTER  I. 

Of  the  different  denominations  of  places  of  confinement. 

Art.  11.  There  shall  be  provided  at  the  expense  of  the  state,  in  such 
place  in  the  first  judicial  district  as  the  general  assembly  shall  direct, 
three  separate  and  distinct  places  of  confinement. 

Art.  12.  One  of  them  shall  be  called  the  House  of  Detention.  In 
this  shall  be  confined  : 

1.  Persons  who,  in  the  cases  allowed  by  law,  are  detained  in  order 
to  secure  their  attendance  as  witnesses  on  criminal  trials  in  the  first 
district. 

2.  Those  who  are  committed  for  trial  on  an  accusation  of  MISDEMEA- 
NOR in  the  first  district. 

3.  Persons  sentenced  to  simple  imprisonment  (whether  in  close  cus- 
tody or  not)  for  any  period,  whether  in  the  first  district,  or  in  any 
other  district,  for  more  than  sixty  days. 

4.  Those  who  may  be  committed  for  a  disturbance  in  court,  for  any 
such  disobedience  to  the  orders  of  a  court  or  a  magistrate  as  may  be 
punished  by  imprisonment,  for  the  non-payment  of  a  fine,  or  for  the 
breach  of  a  recognizance,  or  any  other  engagement  entered  into  in  the 
course  of  a  prosecution  for  an  offence,  in  the  first  district,  in  the  cases 
where  such  confinement  is  authorized. 

5.  All  those  who  may,  in  the  first  district,  be  committed  for  trial  on 
an  accusation  of  CRIME. 

Art.  13.  Another  of  the  said  places  of  confinement  shall  be  called 
the  Penitentiary.  In  which  shall  be  confined  all  those  convicted  of 
crime  in  any  part  of  the  state,  who,  at  the  time  of  conviction,  had 
attained  the  age  of  eighteen  years. 

Art.  14.  The  third  shall  be  called  the  School  of  Reform.  In  it  shall 
be  placed  : 

1.A11  those  convicted  of  crime  (not  punishable  by  imprisonment  for 


694  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

life)  who  have  not  attained  the  age  of  eighteen  years,  in  whatever  part 
of  the  state  the  conviction  may  have  been  had. 

2.  All  persons  under  the  age  of  eighteen  years  who  shall  be  sen- 
tenced to  be  placed  in  the  said  prison,  on  conviction,  for  misdemeanor, 
in  cases  where  power  for  that  purpose  is  specially  given  by  law. 

3.  All  young  vagrants  whose  commitment  shall,  under  that  denomi- 
nation, be  permitted  by  law. 

Art.  15.  Prisoners  committed  before  trial,  and  offenders  sentenced 
to  simple  imprisonment  for  a  term  less  than  sixty  days,  in  any  of  the 
other  judicial  districts,  except  the  first,  shall  be  confined  in  the  jail  of 
the  parish  in  which  they  shall  be  committed,  or  in  which  they  shall  be 
sentenced. 

Art.  16.  Offenders  sentenced  to  simple  imprisonment  in  any  part  of 
the  state,  for  any  term  exceeding  sixty  days,  shall  be  confined  in  the 
House  of  Detention. 

Art.  17.  While  imprisonment  for  debt  continues  to  be  authorized  by 
the  laws  of  the  state,  it  must  be  regulated  by  the  CIVIL  LAW,  and  this 
Code  contains  no  other  provision  in  relation  to  it  than  that  contained 
in  the  following  article. 

Art.  18.  No  person  shall  be  imprisoned  in  any  of  the  three  places  of 
confinement  directed  to  be  .provided  by  this  chapter,  in  pursuance  of  a 
final  judgment,  or  for  want  of  bail,  in  a  civil  suit. 


CHAPTER  II. 

Of  the  construction  of  the  different  places  of  confinement. 

Art.  19.  The  House  of  Detention  shall  be  so  constructed  as  to  keep 
in  four  divisions,  entirely  separate  the  one  division  from  the  other,  the 
prisoners  comprehended  in  the  following  classes  : 

1.  The  first  class  shall  consist  of  the  male -persons  described  in  the 
first,  second,  third,  and  fourth  numbers  of  the  enumeration  contained 
in  the  second  article  of  the  preceding  section. 

2.  The  second  class  shall  consist  of  female  prisoners  of  the  above 
description. 

3.  The  third  class  shall  consist  of  male  persons  committed  for  trial 
on  an  accusation  of  CRIME. 

4.  And  the  fourth  class  shall  consist  of  female  prisoners  confined  for 
trial  on  an  accusation  of  CRIME. 

Art.  20.  This  building  must  also  contain  separate  accommodations 
for  each  individual  of  the  third  and  fourth  classes,  and  for  each  of  the 
persons  who  shall  be  sentenced  to  simple  imprisonment  in  close  custody  ; 
and  two  enclosed  yards — the  one  for  the  male  and  the  other  for  the  fe- 
male prisoners  of  the  other  classes,  in  which  they  may  take  exercise 
and  pursue  such  employment  as  is  hereby  permitted. 

Art.  21.  The  Penitentiary 'shall  be  so  constructed  as  to  contain  : 

1.  Cells  for  those  sentenced  to  solitary  confinement  for  murder. 

2.  Ranges  of  separate  cells,  one  for  each  convict,  with  an  enclosed 
court  for  each  cell. 

3.  A  hydraulic  or  other  machine  to  be  put  in  operation  by  manual 
labour,  so  disposed  that  a  convenient  number  of  prisoners  may  work  at 
it,  separated  from  each  other  by  a  wall. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  695 

4.  School-rooms  sufficient  for  the  instruction  of  a  class  of  persons. 

5.  An  infirmary. 

6.  All  other  necessary  buildings  for  the  safe-keeping  and  support  of 
the  prisoners,  and  for  the  preservation  of  their  health. 

Art.  22.  The  Penitentiary  shall  also  have  a  separate  enclosure,  con- 
taining similar  cells  for  female  convicts,  so  disposed  as  to  prevent  all 
means  of  communication  with  the  male  convicts. 

Art.  23.   The  School  of  Reform  shall  contain  : 

1.  Separate  divisions  for  the  sexes. 

2.  A  separate  dormitory  for  each  prisoner. 

3.  Proper  courts  or  shops  for  the  employment  of  the  prisoners. 

4.  A  school-room  for  each  division. 

5.  An  infirmary. 

Art.  24.  Each  of  the  three  places  of  confinement  described  in  this 
section  shall  be  so  constructed  as  to  be  separate  from  the  others  ;  and 
if  for  the  convenience  of  building  they  should  be  contained  in  the  same 
outer  wall  or  enclosure,  they  must  be  so  arranged  as  to  give  the  pri- 
soners in  the  one  no  means  of  communication  with  those  in  any  other. 

Art.  25.  All  the  prisons  must  be  so  constructed  as  to  be  at  all  times 
completely  ventilated,  and  in  winter  warmed  by  flues  communicating 
with  the  different  cells. 


TITLE  II. 


OF  THE  OFFICERS  AND  ATTENDANTS  OF  THE  SEVERAL  PLACES  OF  CONFINEMENT 
AND  THEIR  SEVERAL  DUTIES. 


CHAPTER  I. 

Of  the  appointment  of  the  officers, 

Art.  26.  There  shall  be  appointed  by  the  governor,  for  the  several 
places  of  confinement  above  mentioned,  the  following  officers  and 
attendants : 

Art  27.  For  the  House  of  Detention,  a  warden  and  a  matron.  The 
warden,  with  the  approbation  of  the  inspectors  hereinafter  mentioned, 
shall  name  so  many  under-keepers,  and  the  matron,  with  the  like 
approbation,  so  many  assistants  as  by  the  inspectors  shall  be  deemed 
necessary  for  the  safe-keeping  of  the  persons  committed  to  their  charge, 
and  for  the  necessary  attendance  on  them. 

Art.  28.  For  the  Penitentiary,  a  warden,  a  matron,  a  teacher,  a 
physician,  two  chaplains,  and  a  clerk. 

Art.  29.  The  warden  and  matron  shall  respectively  appoint  so  many 
assistants  as  the  inspectors  shall  deem  necessary. 

Art.  30.  For  the  School  of  Reform,  a  warden,  a  matron,  and  a  fe- 
male teacher  ;  and  the  keeper  and  matron  shall  respectively  appoint  so 
many  assistants  as  the  inspectors  shall  deem  necessary. 

Art.  31.  The  physician  and  the  chaplains  appointed  for  the  Peniten- 


696  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

tiary  shall  also  attend  the  two  other  places  of  confinement ;  and  the 
teacher  of  the  Penitentiary  shall  instruct  such  of  the  persons  confined 
in  the  House  of  Detention  as  choose  to  receive  lessons,  at  such  times 
as  shall  be  directed  by  the  inspectors. 


CHAPTER  II. 

, 

Of  the  board  of  inspectors  and  their  duties. 

Art.  32.  The  governor  shall  appoint  five  persons  to  form  a  board  of 
inspectors. 

Art.  33.  The  duties  of  the  inspectors  shall  be  to  visit  the  House  of 
Detention,  the  Penitentiary,  and  the  School  of  Reform,  at  least  once  in 
every  week,  to  see  that  the  duties  of  the  several  officers  and  attendants 
are  performed — to  prevent  all  oppression,  peculation,  or  other  abuse, 
in  the  management  of  the  several  institutions ;  and  to  report  to  the 
legislature  such  means  as  may  suggest  themselves  for  their  improvement. 

Art.  34.  They  shall  also,  with  the  approbation  of  the  governor,  form 
rules  for  the  government  of  the  several  places  of  confinement  and  the 
employment  of  the  persons  confined  therein,  not  inconsistent  with  this 
Code.  They  shall  direct  the  purchase  of  all  implements  and  materials 
for  the  manufactures  carried  on  therein,  and  the  sale  of  the  articles 
manufactured  which  are  not  wanted  for -the  use  of  the  prisoners,  and 
they  shall  direct  the  manner  in  which  all  purchases  of  provisions  and 
other  supplies  for  the  prisoners  shall  be  made. 

Art.  35.  The  inspectors  shall  cause  accurate  accounts  to  be  kept  in 
separate  sets  of  books  of  all  expenditures  and  receipts  in  each  of  the 
places  of  confinemeut. 

Art.  36.  They  shall  on  or  before  the  first  day  of  December,  in 
every  year,  make  a  report  in  writing  to  the  legislature,  of  the  state 
of  the  said  places  of  confinement  and  of  the  House  of  Refuge.  The 
report  shall  contain  the  name,  age,  sex,  place  of  residence  and  nativ- 
ity, time  of  commitment,  term  of  imprisonment,  profession  or  trade 
prior  to  commitment,  and  employment  in  prison,  of  each  person  who 
has  been  committed  during  the  preceding  year  to  either  of  said  places 
of  confinement :  noticing  also  those  who  may  have  escaped,  or  died, 
or  who  were  pardoned,  or  discharged,  designating  the  offence  for 
which  the  commitment  was  made,  and  whether  for  a  first  or  repeated 
offence,  and  when  and  in  what  court,  or  by  whose  order  :  and  in  such 
return  the  inspectors  shall  make  such  observations  and  give  such 
information  as  they  may  deem  expedient  for  making  the  said  institutions 
effectual  in  the  punishment  and  reformation  of  offenders. 

Art.  37.  The  inspectors  have  power  to  examine  any  person  on  oath, 
relative  to  any  abuse  in  the  said  places  of  confinement,  or  other  matter 
within  the  purview  of  their  duties. 

Art.  38.  They  have  power  to  make  rules  for  the  preservation  of  pri- 
son discipline  and  for  promoting  industry,  morals,  and  education,  in 
the  said  several  institutions,  which  shall  not  be  contrary  to  any  pro- 
visions of  this  Code  or  of  other  law,  and  to  impose  and  cause  to  be 
inflicted  the  punishments  they  shall  have  ordained  for  the  breach  of 
such  rules,  and  for  all  such  infractions  of  prison  discipline,  as  are 
made  punishable  by  this  Code. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  697 

Art.  39.  They  shall  direct  in  what  manner  the  rations  for  the  sub- 
sistence of  the  prisoners  shall  be  composed,  in  conformity  with  the 
general  directions  on  that  subject  hereinafter  contained. 

Art.  40.  They  shall  also  perform  such  duties  as  are  required  of  them 
in  the  subsequent  parts  of  this  Code. 

Art.  41.  Each  inspector  shall  have  the  right  to  visit  and  inspect 
the  said  places  of  confinement  and  the  House  of  Refuge  whenever  he 
shall  deem  it  expedient  ;  and  the  keepers,  wardens,  clerks,  and  other 
officers  of  the  several  prisons  are  bound  to  submit  to  them,  or  either  of 
them,  whenever  called  on,  the  books,  papers,  and  accounts,  belonging 
to  the  prisons,  to  which  such  officers  belong,  and  to  admit  them  to  the 
prisoners  therein  confined. 

Art.  42.  It  is  the  duty  of  the  inspectors  to  call  at  least  once  in  every 
three  months  upon  the  proper  officers  of  each  place  of  confinement 
for  an  exhibition  of  the  accounts,  to  examine  the  same,  and  compare 
the  entries  with  the  vouchers  ;  to  examine  the  persons  employed  in 
the  said  places  of  confinement  on  oath,  whenever  it  shall  be  deemed 
necessary,  and  to  report  any  abuses  or  oppressions  that  may  come  to 
their  knowledge,  to  the  governor,  if  any  of  the  officers  appointed  by 
him  are  implicated  therein,  or  themselves  to  reprimand  or  dismiss 
any  other  person  employed  when  it  is  found  necessary. 

Art.  43.  The  inspectors  in  their  weekly  visits  to  the  several  places 
of  confinement  shall  speak  to  each  person  confined  therein,  out  of  the 
presence  of  any  of  the  persons  employed  therein  ;  shall  listen  to  any 
complaints  that  may  be  made  of  oppression  or  ill  conduct  of  the  per- 
sons so  employed  ;  examine  into  the  truth  thereof,  and  proceed  therein 
according  to  the  directions  of  the  last  preceding  article  when  the 
complaint  is  well  founded  ;  and  on  such  visits  they  shall  have  the 
calendar  of  the  prisoners  furnished  to  them  by  the  warden,  and  see  by 
actual  inspection  whether  all  the  prisoners  named  in  the  said  calendar 
are  found  in  the  said  prison  in  the  situation  in  which  by  the  said  calen- 
dar they  are  declared  to  be. 

Art.  44.  They  shall  also  hear  and  determine  all  charges  of  breach  of 
prison  discipline  that  shall  be  reported  against  any  prisoner,  when  the 
punishment  to  be  inflicted  is  close  confinement  for  more  than  twenty- 
four  hours. 

Art.  45.  A  majority  of  the  said  inspectors  shall  constitute  a  board, 
and  may  do  any  of  the  acts  required  of  the  said  inspectors  by  this  Code. 
Two  of  the  inspectors  shall  be  a  quorum  for  the  weekly  visitations  here- 
by directed  to  be  made. 

Art.  46.  The  governor,  the  president  of  the  senate,  the  speaker  of 
the  house  of  representatives,  the  mayor  of  the  city  of  New  Orleans, 
the  judges  of  the  supreme  court,  of  the  criminal  court,  and  of  the  first 
district,  the  attorney-general,  and  the  directors  of  the  Asylum  for 
Orphan  Boys,  are  authorized  to  attend  the  meetings  of  the  inspectors,  to 
take  part  in  their  deliberations,  but  not  to  vote,  to  attend  their  weekly 
inspections  ;  and  each  of  the  persons  abovementioned  may  do  any 
act  which  the  said  inspectors  individually  are  authorized  to  perform. 

Art.  47.  Each  of  the  directresses  of  the  Poydrass  Asylum,  and  the 
members  of  any  female  society  that  shall  be  formed  for  that  purpose, 
are  permitted  and  requested  to  exercise  all  the  powers  and  perform 
all  the  duties  with  respect  to  the  female  prisoners  in  either  of  the 
establishments,  that  any  individual  inspector  is  hereby  authorized  to 
perform. 

4   N 


698  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

Art  48.  Each  inspector  shall  receive  for  every  day's  attendance 
in  the  performance  of  the  duties  required  by  this  act  the  sum  of 
dollars,  provided  the  same  shall  not  amount,  in  any  one 
year,  to  more  than  dollars. 

Art.  49.  It  is  made  the  important  and  special  duty  of  the  inspectors, 
in  their  individual  or  joint  visits  to  the  convicts,  to  enter  into  friendly 
conversation  with  them,  to  impress  on  their  minds  the  importance  of 
moral  and  religious  instruction,  of  industry,  and  orderly  conduct,  and 
to  encourage  them  to  a  perseverance  in  this  course  by  a  promise  of  aid 
and  patronage,  in  the  manner  hereinafter  directed  on  their  discharge. 

Art.  50.  The  inspectors  shall  have  power  to  make  contracts  for  the 
labour  of  the  convicts  in  the  Penitentiary  and  School  of  Reform  with 
such  mechanics  as  will  learn  them  a  useful  trade,  under  the  restric- 
tions prescribed  in  the  title  concerning  the  treatment  of  the  convicts. 

Art.  51.  No  inspector,  nor  any  officer  or  other  person  employed  in 
any  of  the  said  places  of  confinement,  shall  sell  any  article  for  the  use 
of  either  of  them,  or  of  the  persons  confined  therein  during  their  con- 
finement, or  shall  purchase  any  of  the  manufactures  made  therein,  or 
derive  any  emolument  from  such  purchase  or  sale  either  to  himself  or 
to  any  relation  in  the  ascending  or  descending  line,  or  any  collateral 
within  the  third  degree,  other  than  such  emolument  as  is  hereinafter 
expressly  allowed  ;  and  any  offender  against  this  provision  shall  be 
fined  five  hundred  dollars  and  imprisoned  in  close  custody  thirty  days. 

Art.  52.  No  work  shall  be  performed  nor  any  article  manufactured 
by  any  of  the  prisoners  for  the  use  of  any  of  the  inspectors  or  officers 
of  either  of  the  prisons,  or  of  any  of  the  attendants  employed  therein, 
or  for  the  use  of  the  families  of  either  of  them  ;  nor  shall  they  or 
either  of  them  receive  under  any  pretence  whatever  from  either  of 
the  said  prisoners,  or  any  one  on  his  behalf,  any  sum  of  money  or 
gift  of  any  assignable  value,  under  the  penalty  of  five  hundred  dollars 
fine,  and  six  months'  imprisonment  in  close  custody. 

Art.  53.  The  inspectors  have  power,  in  case  of  the  necessary  and 
temporary  absence  or  disability  of  either  of  the  wardens,  or  of  any  of 
the  officers  employed  in  either  of  the  prisons,  to  employ  a  substitute 
during  such  absence  or  disability  ;  which  substitute  shall,  for  the  time 
being,  perform  all  the  duties,  have  all  the  authority,  and  be  liable  to 
all  the  penalties  as  the  officer  himself. 


CHAPTER  III. 

Of  the  duties  common  to  the  wardens  of  the  penitentiary,  house 
of  detention,  and  of  the  school  of  reform. 

Art.  54.  Each  of  the  said  wardens  shall  reside  in  the  prison  over 
which  he  presides. 

Art.  55.  Each  of  them  shall  visit  every  cell  and  apartment,  and  see 
every  prisoner  under  his  care,  at  least  once  in  every  day,  and  when  he 
visits  the  female  prisoners,  he  shall  be  accompanied  by  the  matron. 

Art.  56.  They  shall  each  keep  a  journal,  in  which  shall  be  regularly 
entered  the  reception,  discharge,  death,  pardon,  or  escape,  of  any  pri- 
soner; and  also,  the  complaints  that  are  made  and  the  punishments  that 
are  inflicted  for  the  breach  of  prison  discipline,  as  they  occur,  the  visits 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  699 

of  the  inspectors,  the  chaplain  and  the  physician,  and  all  other  occur- 
rences of  note  that  concern  the  state  of  the  prison,  except  the  receipts 
and  expenditures,  the  account  of  which  are  to  be  kept  in  the  manner 
hereinafter  directed. 

Art.  57.  On  the  commitment  of  a  prisoner  accused  of  CRIME  in  the 
House  of  Detention,  and  when  convicted  of  a  crime  on  his  entrance  in 
the  Penitentiary  or  School  of  Reform,  there  shall  be  entered  on  the 
journal  the  sex,  age,  apparent  height,  and  accurate  description  of  the 
person,  last  place  of  abode,  and  nativity  of  the  prisoner. 

Art  58.  On  the  death  of  any  prisoners,  the  warden  shall  immedi- 
ately give  notice  to  the  board  of  inspectors,  and  shall  take  the  measures 
directed  by  the  Code  of  Procedure  for  summoning  a  jury  of  inquest. 

Art.  59.  The  wardens  shall  severally  make  a  report  in  writing  to 
the  governor  every  six  months  of  all  the  persons  in  custody,  specifying 
the  times  of  commitment  and  discharge,  by  pardon  or  expiration  of 
sentence,  or  acquittal,  and  the  escape  or  death  and  removal  from  the 
one  prison  to  another  of  each  person  who  has  been  in  their  custody, 
severally,  during  the  preceding  six  months,  together  with  the  general 
state  of  the  prison,  and  such  observations  and  information  as  the  warden 
may  think  necessary,  or  as  the  governor  or  inspectors  shall  direct. 

Art.  60.  The  wardens  shall  appoint  the  under-keepers,  and  dismiss 
them  at  their  pleasure. 

Art.  61.  They  shall  see  that  the  duties  required  by  this  Code  in  their 
respective  prisons  are  performed  by  the  several  officers  thereof,  and  shall 
report  any  default  both  to  the  governor  and  to  the  board  of  inspectors. 

Art.  62.  The  wardens  severally  have  power  to  arrest  and  conduct 
before  a  magistrate  for  commitment  any  person  who  shall  make  himself 
liable  to  any  penalty  under  this  Code. 

Art.  63.  Each  warden  shall  put  up  in  every  apartment  and  cell  of 
the  prison  under  his  care  a  printed  copy  of  the  rules  for  the  govern- 
ment thereof,  and  shall  c'ause  them  to  be  explained  to  those  who  cannot 
read  or  are  unable  to  understand  them. 

Art.  64.  He  shall  report  all  infractions  of  the  rules  to  the  inspectors, 
and  with  the  approbation  of  one  of  them,  may  punish  the  offender  in  the 
manner  directed  in  the  chapter  concerning  the  treatment  of  prisoners. 

Art.  65.  No  warden  shall  absent  himself  from  the  prison  under  his 
care  for  a  night,  without  permission,  in  writing,  from  one  of  the  inspec- 
tors, or  in  the  execution  of  some  duty  that  requires  such  absence,  or 
by  reason  of  some  unforeseen  accident  which  renders  it  necessary;  and 
whenever  such  accident  occurs,  it  is  to  be  noted  on  the  journal. 

Art.  66.  The  warden  shall  not  be  present  when  the  inspectors  make 
their  stated  visits  to  the  prisoners  under  his  care. 

Art.  67.  The  further  duties  and  powers  of  the  wardens  in  their 
respective  prisons,  are  detailed  in  the  chapter  relative  to  the  reception 
and  treatment  of  prisoners,  and  in  other  parts  of  this  Code. 


CHAPTER  IV. 

Of  the  duty  of  the.  under-keepers  in  the  penitentiary  and  house  of 

detention. 

Art.  68.  The  under-keepers  must  be  men  of  sobriety,  honesty,  and 


700  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

industry.  They  must  understand  reading,  writing,  the  first  rules  of 
arithmetic,  and  must  speak,  for  the  common  purposes  of  life,  the  French 
and  English  languages. 

Art  69.  It  is  the  duty  of  the  under-keepers  to  visit  each  prisoner 
three  times  in  every  day,  to  see  that  his  meals  are  regularly  delivered 
according  to  the  prison  allowance  ;  to  set  those  to  work  who  are  per- 
mitted or  condemned  to  labour  ;  and  to  see  that  they  are  instructed 
therein,  according  to  the  rules  established  by  this  Code,  and  to  the 
further  directions  of  the  warden. 

Art.  70.  Whenever  any  convict  shall  complain  of  such  illness  as  to 
require  medical  aid,  the  under-keeper  shall  immediately  give  notice  to 
the  physician. 

Art.  71.  Each  under-keeper  shall  have  a  certain  number  of  prisoners 
assigned  to  his  care. 

Art.  72.  He  shall  make  a  daily  report  to  the  warden,  of  the  health, 
conduct,  and  industry  of  the  prisoners,  and  a  like  report  to  the  inspec- 
tors when  required. 

Art.  73.  No  under-keeper  shall  be  present  when  the  warden  or  the 
inspector  visit  the  prisoners  under  his  particular  care. 

Art.  74.  The  under-keepers  shall  obey  all  legal  orders  given  by  the 
warden  for  the  government  of  the  prison.  They  shall  be  removeable 
by  him  at  pleasure;  and  by  the  inspectors  on  proof  of  ill  conduct  in  their 
offices.  All  orders  to  the  under-keepers  must  be  given  through  or  by 
the  warden. 

Art.  75.  They  must  remain  in  the  prison  night  and  day,  and  shall 
not  be  employed  either  by  the  warden  or  the  inspectors  in  any  other 
place.  They  shall  not  absent  themselves  without  permission  from  the 
warden. 

Art.  76.  The  under-keepers  shall  act  also  as  guards ;  for  which  pur- 
pose arms  and  munitions  shall  be  provided  by  the  state,  to  be  put  into 
their  hands  by  the  warden  when  they  are  on  guard,  and  at  other  times 
when  circumstances  require  it ;  but  in  their  daily  occupations  they  are 
not  to  be  armed- 

Art.  77.  No  under-keeper  shall  receive  from  any  one  confined  in 
either  of  the  said  prisons,  or  from  any  one  in  behalf  of  such  prisoner, 
any  emolument  or  reward  whatever,  or  the  promise  of  any,  either  for 
services  or  supplies,  or  as  a  gratuity  ;  under  the  penalty  of  fine  of  one 
hundred  dollars  and  imprisonment  for  thirty  days;  and  when  any  breach 
of  this  article  shall  come  to  the  knowledge  of  the  warden  or  inspectors, 
the  under-keepers  offending  shall  be  immediately  discharged. 

Art.  78.  The  compensation  of  the  under-keepers  shall  be 


CHAPTER  V. 


Of  the  duties  of  the  chaplains. 

Art.  79.  The  chaplains  shall  be,  the  one  a  clergyman  of  the  Catholic 
church,  the  other  of  some  one  of  the  Protestant  persuasions;  each  shall 
receive  a  salary  of 

Art.  80.  The  Catholic  chaplain  shall,  at  least  twice  in  every  week, 
visit  every  person  of  his  own  persuasion  in  the  Penitentiary  and  School 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  701 

of  Reform,  and  such  persons  as  are  confined  in  the  House  of  Detention 
in  close  custody. 

Art.  81.  The  Protestant  chaplain  shall,  in  like  manner,  perform  the 
same  duty  to  all  the  prisoners  who  are  of  any  Protestant  persuasion. 

Art.  82.  It  is  the  duty  of  both  to  instruct  the  prisoners  under  their 
care  in  thie  duties  of  religion  and  morality  ;  to  exhort  them  to  repent- 
ance and  amendment ;  to  show  the  folly  and  danger  of  vice  ;  and  to 
encourage  those  who  are  confined  for  a  term  of  years  with  the  hope  of 
being  reinstated  in  the  good  opinion  of  the  world  by  a  perseverance  in 
the  principles  of  honesty  and  the  practice  of  industry  ;  to  impress  on 
their  minds  that  it  is  not  their  punishment  but  their  crime  that  has 
degraded  them,  and  that  sincere  repentance  and  amendment  may  cause 
both  to  be  forgotten  by  man,  as  the  sin  will  surely  be  forgiven  by  God. 
To  those  sentenced  to  confinement  for  life,  they  must  hold  out  no  falla- 
cious hope  of  pardon,  but  teach  them  to  fix  their  hopes  on  another 
world,  and  prepare  for  it  by  contrition  and  repentance. 

Art.  S3.  The  Catholic  chaplain  shall  have  free  access  to  the  cells  of 
all  the  Catholic  convicts  ;  and  the  Protestant  chaplain  to  those  of  the 
Protestant  convicts  ;  and  either  of  them  to  the  cell  of  any  convict  of 
any  religion  who  requests  it. 

Art.  84.  Any  clergyman  of  any  religion  or  religious  sect  may  be 
admitted  to  see  any  convict  who  may  require  his  attendance,  or  at  his 
own  request,  at  proper  and  reasonable  hours,  under  the  direction  of  the 
warden  or  inspectors. 

Art.  85.  The  chaplains  shall  be  furnished  with  forms  of  returns  which 
shall  contain  the  names  of  the  prisoners,  with  blank  columns,  in  which 
shall  be  entered,  by  the  chaplain,  the  date  of  each  visit  he  shall  pay, 
and  opposite  to  each  name  the  observations  he  may  make  on  the 
character  and  demeanor  of  the  convict  with  respect  to  his  moral  and 
religious  improvement. 

Art.  86.  Each  of  the  said  chaplains  shall  perform  divine  service  at 
least  once  on  every  Sunday  in  the  School  of  Reform. 

Art.  87.  Selections  from  Scriptures,  and  such  other  books  of  religious 
and  moral  instruction  as  shall  be  recommended  by  the  chaplains  and 
approved  by  the  inspectors,  shall  be  distributed  among  the  convicts. 


CHAPTER  VI. 

Of  the  qualifications  of  the  teachers,  and  the  duties  of  the  teacher 
of  the  penitentiary. 

Art.  88.  The  teachers  must  be  men  of  good  moral  characters  ;  they 
must  understand  the  French  and  English  languages,  and  be  capable  of 
leaching  reading,  writing,  arithmetic,  book-keeping,  navigation,  and 
land-surveying.  They  need  not  reside  in  the  prison. 

Art.  89.  The  teacher  of  the  Penitentiary,  for  the  first  six  months  after 
the  convict  shall  be  confined  therein,  must  attend  at  the  cells  and  work- 
ing courts  of  all  the  male  convicts  who  cannot  read  and  write,  and  give 
separate  lessons,  in  turn,  to  as  many  of  them  as  his  time  will  permit, 
calculating  seven  hours  in  pach  day,  in  every  day,  Sundays  included. 

Art.  90.  At  the  end  of  the  said  six  months  he  may  form  classes,  not 
exceeding  eight  in  each  class,  of  such  of  the  convicts  as  shall  have 


702  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

obtained  favourable  certificates  of  conduct  during  that  period,  as  to 
industry,  morality  and  order,  from  the  warden  and  chaplain,  which 
class  he  shall  assemble,  at  least  once  in  every  two  days,  in  the  school- 
room for  instruction,  for  the  space  of  one  hour. 

Art.  91.  No  convict  shall  be  admitted  into  a  class  until  after  he  has 
obtained  such  certificate,  and  shall  be  degraded  therefrom  for  miscon- 
duct for  a  greater  or  less  interval,  according  to  the  nature  of  the  offence 
and  the  sentence  of  the  inspectors. 

Art.  92.  Those  convicts  who  can  write  and  read,  but  who  are  desirous 
of  instruction  in  any  of  the  other  branches  taught  by  the  teacher,  may 
also  be  instructed  in  their  cells  after  three  months'  good  behaviour,  cer- 
tified as  aforesaid,  and  may  be  admitted  into  a  class  on  a  like  certificate 
of  six  months. 

Art.  93.  Convicts  condemned  to  imprisonment  for  life  cannot  be 
admitted  into  a  class.  They  may  receive  such  instruction,  if  they  need 
and  deserve  it,  as  will  enable  them  to  read,  but  it  must  be  given  in  their 
cells  or  courts. 

Art.  94.  The  teacher  shall  make  rules  for  the  preservation  of  disci- 
pline and  order  in  the  several  classes,  which  he  shall  submit  to  the 
inspectors  and  the  warden,  and,  if  approved  by  them,  shall  be  in  force; 
but  no  punishment  shall  be  inflicted  greater  than  those  directed  by  the 
rules  established  in  this  Code. 

Art.  95.  The  individuals  who  are  to  compose  the  different  classes 
shall  be  designated  by  the  teacher  with  the  approbation  of  the  inspec- 
tors, after  they  shall  have  consulted  the  warden. 

Art.  96.  One  rule  of  the  instruction  by  classes  shall  be,  that  no  con- 
versation shall  be  permitted  between  the  individuals  composing  it  on 
any  other  subject  than  that  relating  to  the  art  or  science  in  which  they 
are  instructed ;  and  to  enforce  this  rule,  it  is  made  the  duty  of  the 
teacher  never  to  leave  the  class  while  they,  or  any  two  of  the  indi- 
viduals composing  it,  are  assembled. 

Art.  97.  The  individuals  composing  the  class  shall  be  conducted  by 
an  under-keeper  separately  to  and  from  the  place  of  instruction,  and 
shall  not,  on  any  pretence  whatever,  be  suffered  to  speak  to  any  one 
by  the  way. 

Art.  98.  The  teacher  may,  with  the  approbation  of  the  inspectors, 
select  one  or  more  of  the  convicts  of  sufficient  instruction  and  ability, 
who  has  been  committed  for  a  term  of  years,  to  assist  in  the  duties  of 
his  office,  provided  no  person  shall  be  selected  who  has  not  a  certificate 
of  good  behaviour  for  at  least  two  years,  both  from  the  chaplain  and 
warden  ;  and  until  the  expiration  of  the  said  two  years,  and  until  such 
selection  shall  be  made,  the  inspectors  are  authorized,  if  they  deem  it 
necessary,  to  employ  such  assistant,  at  a  salary  not  exceeding  two- 
thirds  of  that  given  to  the  principal  teacher. 

Art.  99.  If  any  convict  shall  have,  prior  to  his  commitment,  cultivated 
any  of  the  arts,  of  painting,  sculpture,  or  architecture,  as  a  profession, 
or,  in  the  opinion  of  the  inspectors,  shall  have  a  decided  genius  for 
either  of  them,  he  shall,  after  obtaining  a  certificate  of  six  months'  good 
behaviour,  be  permitted  to  employ  a  portion  of  the  time  allotted  for 
labour,  not  exceeding  one  hour  in  each  day,  to  his  improvement  therein; 
and  per  cent,  of  his  earnings,  after  paying  for  his  support,  shall, 

if  he  request  it,  be  appropriated  to  the  purchase  of  implements  and 
materials  for  the  business  ;  provided,  that  this  indulgence  shall  be  sus- 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  703 

pendecl  or  forfeited,  at  the  direction  of  the  inspectors,  by  any  breach 
of  the  rules  of  the  prison. 

Art.  100.  Convicts  committed  for  a  term  of  years,  who  cannot  read, 
write,  and  cipher,  may  be  punished,  by  order  of  the  inspectors  or  the 
warden,  for  refusing  to  receive  instruction  therein.  All  other  scientific 
instruction  is  an  indulgence  to  be  obtained  only  by  a  perseverance  in 
good  behaviour. 

Art.  101.  The  female  convicts  who  are  uninstructed  in  reading  and 
writing  and  the  first  rules  of  arithmetic,  shall  be  taught  by  the  matron, 
or  such  assistant  as  the  inspectors  may  direct,  and  at  such  hours  as  they 
shall  appoint. 


CHAPTER  VII. 

Of  the,  duties  of  the  teacher  of  the  school  of  reform. 

Art.  102.  The  teacher  of  the  School  of  Reform  must  possess  the 
same  qualifications  that  are  required  in  the  teacher  in  the  Penitentiary. 
He  need  not  reside  in  the  establishment. 

Art.  103.  He  shall  instruct  the  male  and  female  departments  of  the 
School  of  Reform  in  the  several  branches  of  learning,  at  the  times  and 
in  the  manner  prescribed  for  that  purpose  in  the  chapter  of  this  Code 
relative  to  instruction  in  the  School  of  Reform. 

Art.  104.  He  shall  receive  a  yearly  salary  of  dollars. 

CHAPTER  VIII. 

Of  the  duties  of  the  physician. 

Art.  105.  The  physician  shall  visit  every  prisoner  in  the  prisons 
twice  in  every  week,  and  oftener  if  the  state  of  their  health  requires  it, 
and  shall  report  once  in  every  month  to  the  inspectors. 

Art.  106.  He  shall  attend  immediately  on  notice  from  the  warden 
or  keeper  that  any  person  is  sick. 

Art.  107.  He  shall  examine  every  prisoner  that  shall  be  brought 
into  the  Penitentiary  and  School  of  Reform  before  he  shall  be  confined 
in  his  cell. 

Art.  108.  Whenever,  in  the  opinion  of  the  physician,  any  convict  in 
the  Penitentiary  or  School  of  Reform,  is  so  ill  as  to  require  removal, 
the  warden  shall  direct  such  removal  to  the  infirmary  of  the  institution 
in  which  he  is  confined;  and  the  prisoner  shall  be  kept  in  the  infirmary 
until  the  physician  shall  certify  that  he  may  be  removed  without  injury 
to  his  health,  and  he  shall  then  be  removed  to  his  cell. 

Art.  109.  He  shall  visit  the  patients  in  the  infirmary  at  least  once  in 
every  day,  and  he  shall  give  such  directions  for  the  health  and  cleanli- 
ness of  the  prisoners  as  he  may  deem  expedient,  which  the  warden 
shall  have  executed,  provided  they  shall  not  be  contrary  to  the  pro- 
visions of  this  Code,  or  inconsistent  with  the  safe  custody  of  the  said 
prisoners  ;  and  the  directions  he  may  give,  whether  complied  with  or 
not,  shall  be  entered  on  the  journal  of  the  warden  and  on  his  own. 

Art.  110.  The  physician  shall  inquire  into  the  mental  as  well  as  the 


704  CODE  OP  REFORM  AND  PRISON  DISCIPLINE. 

bodily  state  of  every  prisoner  ;  and  when  he  shall  have  reason  to  be- 
lieve that  the  mind  or  body  is  materially  affected  by  the  discipline, 
treatment,  or  diet,  he  shall  inform  the  warden  thereof,  and  shall  enter 
his  observations  on  the  journal,  herein  after  directed  to  be  kept,  which 
shall  be  an  authority  for  the  warden  for  altering  the  discipline,  treat- 
ment, or  diet,  of  any  prisoner  until  the  next  meeting  of  the  inspectors, 
who  shall  inquire  into  the  case,  and  make  orders  accordingly. 

Art.  111.  He  shall  have  power  to  cause  any  one  infected  by  a  con- 
tagious or  infectious  disorder  to  be  separated  from  the  other  prisoners  ; 
and  if  three  other  licensed  practitioners  of  physic  shall  certify,  that  the 
disease  is  infectious,  and  that  the  prisoner  cannot,  without  danger  to 
the  others,  be  kept  within  the  walls  of  the  prison,  the  inspectors  shall 
make  an  order  for  his  removal  and  confinement  elsewhere,  until  he 
shall  die  or  recover. 

Art.  112.  The  physician  shall  keep  a  journal,  in  which,  opposite  to 
the  name  of  each  prisoner,  shall  be  entered  the  state  of  his  health  ;  and 
if  sick,  whether  in  the  infirmary  or  not,  together  with  such  remarks  as 
he  may  deem  important ;  which  journal  shall  be  open  to  the  inspection 
of  the  warden  and  the  inspectors  ;  and  the  same,  together  with  the 
return  provided  for  in  the  first  article  of  this  section,  shall  be  laid  be- 
fore the  inspectors  once  in  every  month,  or  oftener  if  called  for. 

Art.  113.  The  prisoners,  under  the  care  of  the  physician,  shall  be 
allowed  such  diet  as  he  shall  direct. 

Art.  114.  No  prisoner  shall  be  discharged  while  labouring  under  a 
dangerous  disease,  although  entitled  to  his  discharge,  unless  by  his  own 
desire. 

Art.  115.  The  infirmary  shall  have  a  partition  between  every  two 
beds,  and  no  two  patients  shall  occupy  the  same  bed  ;  and  the  physician 
and  his  attendants  shall  take  every  precaution  in  their  power  \o  prevent 
all  intercourse  between  the  convicts  while  in  the  infirmary. 

Art.  116.  The  physician  shall  select  from  among  the  young  delin- 
quents in  the  School  of  Reform  two  or  more  who  have  given  evidence 
to  the  satisfaction  of  the  warden,  the  teacher,  and  the  chaplain,  of 
determination  to  reform,  and  who  shall  have  made  sufficient  progress 
in  their  education,  as  his  assistants  in  the  two  infirmaries,  to  whom  he 
shall  teach  the  art  of  compounding  and  administering  remedies,  and 
such  other  branches  of  medical  knowledge  as  they  may  be  capable  of 
acquiring ;  which  assistants  shall  be  employed  in  the  care  and  attend- 
ance on  the  sick,  and  shall  be  exempt  from  all  other  labour  while  they 
preserve  the  confidence  of  the  physician,  and  are  guilty  of  no  breach  of 
the  rules  of  prison  discipline. 


CHAPTER  IX. 

Of  the  duties  of  the  clerk  of  the  penitentiary. 

Art.  117.  The  clerk  shall,  under  the  direction  of  the  inspectors, 
keep  regular  accounts  of  all  the  expenses  of  the  Penitentiary,  of  the 
proceeds  of  the  articles  manufactured  therein,  and  of  the  purchase  of 
materials  to  keep  the  convicts  employed,  when  they  do  not  work  by 
contract,  as  is  hereinafter  provided.  He  shall  also  open  an  account 
with  each  convict,  in  which  such  convict  shall  be  charged  with  the  cost 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  705 

of  his  prosecution  and  conviction,  and  with  his  maintenance  in  prison, 
including  only  his  food  and  clothing  and  such  drugs  and  medicines  as 
he  ma)'  be  supplied  with  ;  and  shall  be  credited  with  his  labour  at  such 
estimation  of  its  value  as  shall  be  equitable,  according  to  its  quantity 
and  quality,  agreeable  to  the  rates  paid  for  like  labour  in  the  city  of 
New  Orleans  ;  or  (when  he  works  by  contract)  according  to  the  con- 
tract price  of  such  labour. 

Art.  118.  The  inspectors  shall  direct  the  mode  in  which  the  accounts 
shall  be  kept,  and  shall  direct  the  agent  they  shall  employ  for  making 
purchases  and  for  selling  the  articles  manufactured  in  the  Penitentiary, 
(which  agent  shall  in  no  case  be  the  clerk);  to  furnish  the  clerk  with 
accounts  and  bills  of  all  such  purchases  and  sales. 

Art.  119.  The  clerk  shall  deliver  to  the  agent  all  such  articles  manu- 
factured in  the  prison  as  are  not  done  for  manufacturers  by  contract, 
and  which  are  not  wanted  for  the  use  of  the  same,  keeping  an  account 
as  well  of  what  is  so  wanted  and  retained,  as  of  what  is  delivered. 

Art.  120.  The  books  of  accounts  shall  be  kept  in  the  prison,  and 
shall  be  open  to  the  inspection  of  the  warden  and  the  inspectors. 

Art.  121.  The  clerk  shall  keep  a  regular  account  of  all  the  furniture, 
tools,  and  implements  of  trade  provided  for  the  prison,  and  shall  sub- 
mit the  same  to  the  inspectors. 

Art.  122.  He  shall  receive  such  remuneration  for  his  services  as 
shall  be  determined  by  the  inspectors,  not  exceeding  dollars  per 

annum. 


CHAPTER  X. 

Of  the,  duties  of  the  matrons. 

Art.  123.  The  matrons  shall  reside  in  their  respective  prisons.  They 
and  their  female  assistants  shall,  under  the  direction  of  the  inspectors, 
have  the  exclusive  care  and  superintendence  of  the  female  convicts. 
No  male  person,  except  the  chaplain,  shall  be  permitted  to  visit  them, 
but  in  the  presence  of  the  matron. 

Art.  124.  She  shall  employ  them  in  making,  mending,  and  washing 
the  clothing  for  the  prisoners.  She  shall  cause  them  to  be  taught 
needle-work  and  other  employments  of  housewifery,  keeping  them  all 
apart  at  night,  and  as  much  as  the  nature  of  their  employment  will 
allow  during  the  day.  She  shall  report  daily  to  the  warden  all  infrac- 
tions of  order,  or  other  material  occurrence  ;  and  shall  inflict  such 
punishment,  consistent  with  this  Code,  as  the  inspectors  and  teacher 
shall  direct. 


4  0 


706  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 


BOOK  II. 


OF  THE  TREATMENT  OF  THE  PRISONERS  IN  THE  SEVERAL  PLACES  OF 

CONFINEMENT. 


TITLE  I. 


OF  THE  PRISONERS  CONFINED   IN  THE  HOUSE  OF  DETENTION. 

Art.  125.  The  prisoners  of  the  first  class,  that  is  to  say,  those  con- 
fined in  order  to  secure  their  attendance  as  witnesses,  shall  be  under 
no  other  restriction  than  that  which  is  absolutely  necessary  to  prevent 
their  escape  from  the  prison.  Good  and  wholesome  food,  comfortable 
bedding,  and  other  necessaries,  shall  be  provided  for  them  at  the  public 
expense  ;  or  they  may  be  allowed  to  provide  it  for  themselves  ;  and 
every  such  prisoner  shall  be  immediately  liberated  on  his  giving  the 
security  for  his  appearance  to  testify,  that  is  required  by  law. 

Art.  126.  Those  who  are  committed  for  want  of  bail,  in  the  first 
district,  on  an  accusation  of  misdemeanor  : 

Those  who  are  condemned  to  simple  imprisonment  (not  in  close  cus- 
tody), in  the  first  district,  or  who  are  removed  on  a  like  sentence  from 
any  other  district : 

Those  who  may  be  committed  for  the  non-payment  of  a  fine,  or  for 
the  breach  of  a  recognizance,  or  other,  engagement,  entered  into  in  the 
course  of  a  prosecution  for  an  offence  : 

Form  a  second  class  of  prisoners.  They  need  not  be  separated  from 
each  other  during  the  day,  but  each  shall  be  lodged  at  night  in  separate 
dormitories,  unless  the  numbers  in  the  prison  shall  render  it  impossible. 

Art.  127.  Those  who  are  committed  for  want  of  bail  on  accusations 
of  crime,  form  a  third  class.  These  shall  be  kept  in  separate  cells  or 
apartments  both  night  and  day,  and  shall  have  no  communication 
whatever  with  each  other. 

Art.  128.  All  the  above  classes  of  prisoners  shall  be  entitled  to 
good  wholesome  food  and  drink,  according  to  the  prison  regulations 
hereinafter  provided  for,  and  to  beds  and  bedding,  at  the  public  ex- 
pense ;  or  they  shall  be  permitted  to  purchase  or  receive  such  food 
and  beds,  of  a  better  quality,  at  their  own  expense,  also  under  the 
restrict  ions  contained  under  the  prison  regulations. 

They  may  receive  the  visits  of  their  families  and  friends,  and  their 
counsel,  at  all  reasonable  hours. 

They  shall  be  allowed  the  free  use  of  books,  of  pen,  ink,  and  paper, 
at  their  own  expense. 

Art.  129.  The  prisoners  sentenced  to  close  confinement,  shall  each 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  707 

be  confined  in  a  separate  apartment  or  cell,  furnished  with  the  prison 
allowance  of  bedding,  and  a  chair,  and  a  table  ;  but  may  provide  their 
own  bedding  if  they  think  fit.  They  shall  be  restricted  to  the  prison 
allowance  of  drink  and  food,  unless  the  court  shall  order  differently  in 
the  sentence,  or  the  physician  shall  officially  certify  that  their  health 
will  be  impaired  by  confining  them  to  it. 

They  shall  not  be  permitted  to  receive  any  society  in  their  places 
of  confinement,  without  permission  of  two  of  the  inspectors  in  writ- 
ing, and  the  time  of  such  visit  shall  be  prescribed  and  limited  in  the 
permission,  and  shall  in  no  case  exceed  one  hour  at  a  time. 

They  shall  not  be  debarred  the  privilege  of  consulting  with  their 
counsel,  or  receiving  the  visits  of  their  physician  and  chaplafns,  at  all 
reasonable  times. 

Art.  130.  No  prisoner  in  this  house  shall  be  forced  to  perform  any 
labour.  No  prisoner  shall  be  confined  in  irons  ;  but  if  he  shall  have 
made  an  attempt  to  break  the  prison,  or  have  assaulted  the  keeper  or 
other  person  employed  in  the  house,  he  may  be  confined  in  a  straight- 
jacket  or  arm  straps. 

Art.  131.  All  the  prisoners  in  this  house  may  be  permitted  to  work 
at  such  trades  and  manufactures  as  they  may  desire  and  may  be  deemed 
by  the  inspectors  proper  to  be  carried  on  in  the  house,  without  infring- 
ing the  rules  hereinbefore  laid  down  ;  and  the  inspectors  shall  pro- 
vide the  tools  and  implements,  and  the  materials  for  carrying  on  such 
manufactory  as  they  may  deem  expedient,  and  shall  allow  to  such 
of  the  prisoners  as  may  choose  to  work  thereat  three-fourths  of  the 
net  proceeds  of  their  labour,  and  shall  pay  the  same  as  it  is  earned  to 
the  prisoner  ;  the  other  fourth  shall  be  deposited  in  bank  in  the  man- 
ner hereinafter  directed. 

Art.  132.  The  daily  allowance  of  food  to  a  prisoner  in  the  house  of 
detention  shall  be  the  same  as  is  allowed  to  a  soldier  in  the  army  of 
the  United  States.  The  bedding  shall  be  the  same  as  is  directed  for 
the  prisoners  in  the  Penitentiary. 

Art.  133.  The  inspectors  shall  make  prison  regulations  for  the  pre- 
servation of  order  in  the  House  of  Detention,  not  inconsistent  with 
this  Code,  and  for  the  supply  of  food  and  other  accommodations  to 
such  of  the  persons  detained  as  are  allowed  to  procure  the  same  at 
their  own  expense ;  but  no  wine  or  spirituous  liquors  shall  be  intro- 
duced but  by  order  of  the  physician,  stating  that  the  health  of  the 
party,  in  whose  favour  it  is  given,  requires  it. 


TITLE  II. 


OF  THE  TREATMENT  OF  THE  PRISONERS  IN  THE  PENITENTIARY. 


CHAPTER  I. 

Of  the  recaption  of  the  convicts. 

Art.  134.  Every  convict  sentenced  to  imprisonment  in  the  Peniten- 
tiary shall,  immediately  after   the   sentence  shall  have  been   finally 


708  CODE  OF  REFORM  AND  PRTSON  DISCIPLINE. 

pronounced,  be  conveyed,  by  the  sheriff  of  the  parish  in  which  he  was 
condemned,  to  the  Penitentiary,  under  secure  guard ;  and  when  it 
shall  be  deemed  necessary,  the  officer  commanding  the  regiment  of 
the  place  where  the  court  sits,  shall  furnish  a  guard  for  that  purpose, 
on  the  order  of  the  court  entered  on  its  minutes. 

Art.  135.  On  the  arrival  of  a  convict,  immediate  notice  shall  be 
given  to  the  physician,  who  shall  examine  the  state  of  his  health  ;  he 
shall  then  be  stripped  of  his  clothes  and  clothed  in  the  uniform  of  the 
prison,  that  is  suited  to  his  offence,  in  the  manner  hereinafter  provided, 
being  first,  if  necessary,  bathed  and  cleaned. 

Art.  136.  The  convict  shall  then  be  examined  by  the  clerk  and  the 
warden,  in  the  presence  of  as  many  of  the  under-keepers  as  can  con- 
veniently attend  ;  and  his  height,  apparent  and  alleged  age,  com- 
plexion, colour  of  hair  and  eyes,  and  length  of  his  feet  to  be  accu- 
rately measured,  shall  be  entered  in  a  book  provided  for  that  purpose, 
together  with  such  other  natural  or  accidental  marks,  or  peculiarity 
of  feature  or  appearance,  as  may  serve  to  identify  him  ;  an  instru- 
ment shall  also  be  provided  by  which  the  profile  of  his  face  shall  be 
delineated,  and  it  shall  be  marked  with  his  name  and  pasted  in  the 
said  book,  under  the  description  of  his  person  :  and  if  the  convict  can 
write,  his  signature  shall  be  placed  under  the  said  description  of  his 
person. 

Art.  137.  All  the  effects  on  the  person  of  the  convict,  as  well  as  his 
clothes,  shall  be  taken  from  him  and  specially  mentioned,  and  pre- 
served to  be  restored  to  him  on  his  discharge,  or  delivered  to  his 
curator,  where  one  shall  be  appointed,  pursuant  to  the  provisions 
hereinafter  contained. 

Art.  138.  If  the  convict  is  not  in  such  ill  health  as  to  require  being 
sent  to  the  infirmary,  he  shall  then  be  conducted  to  the  cell  assigned 
to  him,  where  he  shall  be  kept  in  solitude  for  forty-eight  hours,  inter- 
rupted only  by  the  necessary  attendance  of  the  keeper;  during  this 
period,  designed  for  reflection,  neither  books  nor  employment  of  any 
kind  shall  be  allowed  him. 

Art.  139.  On  the  third  day  the  chaplain  shall  visit  him  in  his  cell, 
and  shall  endeavour  to  impress  on  his  mind  as  well  the  wickedness 
as  the  danger  of  vicious  and  unlawful  pursuits,  and  he  shall  exhort 
him  to  obedience  and  industry  during  the  term  of  his  service,  and  urge 
the  utility  of  acquiring  the  means  of  an  honest  support  by  labour  on 
his  discharge.  The  warden  shall  then  examine  him,  and  put  him  to 
such  labour  as  he  shall  seem  fittest  for,  consulting  his  inclinations  as 
well  as  his  physical  powers. 


CHAPTER  II. 

Of  the  labour  of  the  male  convicts  committed  for  a  term  of  years. 

Art.  140.  Although  labour  forms  a  part  of  the  sentence,  it  is  an- 
nexed as  an  alleviation,  not  an  aggravation  of  punishment.  The 
punishment  is  imprisonment  in  solitude.  All  that  the  law  entitles 
the  patient  to  under  this  confinement,  is  food,  clothing,  and  lodging, 
sufficient  for  the  preservation  of  health,  but  all  of  the  coarsest  kind  ; 
his  health  and  life  are  the  objects  of  attention,  not  his  appetite  or  com- 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  709 

fort.  Other  indulgences  are  the  reward  of  industry,  obedience,  repen- 
tance, and  reformation  ;  these  are  the  effects  of  labour  ;  and  labour, 
therefore,  is  permitted  as  the  means  of  attaining  them. 

Art  141.  The  advantages  that  are  to  be  gained  by  perseverance  in 
labour,  obedience,  moral  conduct,  and  a  desire  of  reform,  are  : 

1.  A  better  diet. 

2.  A  partial  relief  from  solitude,  and  the  means  of  education  by  the 
visits  and  lessons  of  the  teacher. 

3.  Permission  to  read  books  of  general  instruction. 

4.  The  privilege  of  receiving  the  visits  of  friends  or  relations  at 
proper  periods. 

5.  Admission  into  a  class  for  instruction,  after  a  period  of  good 
conduct  that  shall  evince  a  sincere  desire  to  reform. 

6.  The  privilege,  after  a  long  probation,  of  labouring  in  society. 

7.  A  proportion  of  the  proceeds  of  his  labour  on  his  discharge. 

8.  A  certificate  of  good  conduct,  industry,  and  skill  in  the  trade  he 
has  learned,  which  may  enable  him  to  regain  the  confidence  of  society. 

Art.  142.  As  these  advantages  are  to  be  gained  only  by  industry 
and  good  conduct,  they  are  suspended  and  may  be  forfeited  by  idleness 
or  irregularity  ;  and  at  the  expiration  of  the  two  days  given  for  reflec- 
tion, after  the  admission  of  the  convict,  the  articles  of  this  section  are 
to  be  read  to  him,  and  he  shall  make  his  election  whether  lie  will  avail 
himself  of  the  indulgence  they  offer;  should  he  consent,  he  shall  be 
immediately  set  to  labour  ;  if  he  refuse,  the  offer  shall  not  be  repeated 
in  less  than  six  clays  ;  after  the  second  refusal,  it  can  only  be  repeated 
in  fifteen  days  ;  and  after  a  third,  he  cannot  be  permitted  to  accept  it 
until  a  month's  time  shall  have  elapsed  ;  after  which,  he  shall  be  con- 
sidered as  having  made  his  final  election. 

Art.  143.  From  among  the  convicts  who  have  not,  before  commit- 
ment, worked  at  any  trade,  the  warden  shall  select  a  sufficient  number 
to  perform  the  offices  of  cooking  and  other  necessary  attendance  in  the 
prison.  He  shall  prefer  for  this  purpose  those  who  have  the  shortest 
term  to  serve;  but  all  these  shall  be  locked  up  in  separate  cells  at  night. 
Art.  144.  If  the  convict  has  been  used  to  any  employment  or  trade 
that  can  be  advantageously  pursued  consistent  with  the  system  estab- 
,  lished  by  this  Code,  he  shall  be  furnished  with  the  implements  of  such 
trade,  and  be  allowed  to  employ  himself  at  it.  If  his  trade  is  one  that 
cannot,  in  the  opinion  of  the  inspectors,  be  conveniently  carried  on,  or 
is  inconsistent  with  the  system,  he  shall  be  taught  an  employment  the 
most  analogous  to  the  one  to  which  he  has  been  bred. 

Art.  145.  If  the  convict  has  not  been  bred  to  any  trade,  the  warden 
shall  employ  him  at  such  business  as  is  best  adapted  to  his  habits  of  life 
and  his  strength,  consulting  as  much  as  may  be  possible  the  inclination 
of  the  convict;  and  in  the  selection  of  employment,  regard  is  to  be  had 
more  to  giving  him  an  honest  mode  of  subsistence  after  his  discharge, 
than  to  the  profit  of  the  prison. 

Art.  146.  The  regular  occupation  of  each  convict  shall,  for  the  first 
six  months  of  his  confinement,  be  carried  on  in  the  outer  enclosure  of 
his  cell,  in  solitude,  interrupted  only  by  the  visits  of  the  inspectors, 
the  warden,  the  chaplain,  the  teacher,  the  physician,  the  person  (if  any) 
employed  to  instruct  him  in  his  trade,  and  the  attendants  with  the 
regular  meals,  and  by  the  exercise  mentioned  in  the  next  article. 

Art.  147.  For  the  preservation  of  the  health  of  the  prisoners,  each 
of  them  shall  be  made  to  labour  one  hour  in  every  day  at  a  handcrank 


710  CODE  OF  REFORM  AND  PRISON  DISCIPLINE.      . 

hydraulic  machine,  or  some  other,  calculated  to  exert  the  muscular 
powers  in  a  manner  heneficial  to  health.  This  crank,  or  other  parts  of 
the  machine  to  which  bodily  power  is  to  be  applied,  shall  be  so  placed 
and  divided,  that  each  prisoner  may  labour  without  having  it  in  his 
power  to  have  any  communication  with  the  others  employed  in  the 
same  labour,  and  they  shall  be  conducted  separately  to  and  from  the 
place,  under  the  care  of  an  under-keeper,  who  shall  prevent  any  person 
from  having  any  communication  with  them  by  word  or  otherwise. 

Art.  148.  During  the  first  six  months  of  confinement  the  teacher 
shall  give  to  the  convicts  who  cannot  read  or  write,  a  lesson  to  each,  in 
regular  rotation,  employing  himself  at  least  seven  hours  in  each  day, 
until  a  class  shall  be  formed,  when  he  shall  divide  his  time  equally 
between  the  individual  prisoners  entitled  to  instruction  and  the  classes. 

Art.  149.  At  the  expiration  of  six  months  each  convict  who  has 
received  the  lessons  of  the  teacher  during  that  time,  and  such  other 
convicts  as  are  desirous  of  receiving  further  instruction,  shall,  provided 
they  obtain  a  certificate  of  good  conduct  an'd  industry  in  labour  from  the 
warden,  the  chaplain,  and  teacher,  have  the  privilege  of  being  admitted 
into  a  class,  which  shall  receive  instruction  together  in  the  school-room; 
but  no  class  shall  contain  more  than  eight;  no  more  than  one  class  shall 
be  assembled  at  a  time,  and  the  individuals, composing  it  shall  be  con- 
ducted separately  to  arid  from  the  place  of  instruction. 

Art.  150.  The  warden  may,  when  necessary  for  the  instruction  of  a 
prisoner  in  any  business  or  trade,  with  the  permission  of  the  inspectors, 
employ  a  person  of  good  character  for  that  purpose,  who  shall,  at  pro- 
per hours,  have  access  to  such  prisoner. 

Art.  151.  The  warden  may,  with  the  consent  of  the  inspectors,  make 
contracts  for  the  labour  of  the  convicts,  or  any  of  them,  with  mechanics 
or  manufacturers;  but  a  condition  of  the  contract  shall  be,  that  the  con- 
victs shall  be  taught,  and  employed  in,  some  useful  trade  ;  and  for  that 
purpose  a  foreman  or  instructor,  to  be  employed  by  the  contractor,  but 
approved  by  the  warden  and  inspectors,  shall  be  admitted  to  the  enclo- 
sures adjoining  the  cells  of  the  convicts,  at  convenient  times  during  the 
hours  of  labour. 

Art.  152.  The  first  contract  shall  not  be  for  a  longer  period  than 
eighteen  months  ;  and  all  subsequent  contracts  shall  be  made  by  auction 
and  for  one  year;  and  the  applicants  for  the  contract  shall  be  permitted, 
in  the  presence  of  the  warden,  to  examine  the  convicts  as  to  their  skill 
and  ability. 

Art.  153.  If  any  contractor  or  his  agent  shall  give  or  promise  to  any 
of  the  convicts  any  article  of  food,  drink,  or  other  article,  not  permitted 
by  this  Code  or  by  the  prison  regulation,  the  contract  shall  be  forfeited, 
and  each  offender  shall,  pay  a  fine  of  five  hundred  dollars,  and  be  impri- 
soned not  more  than  thirty  nor  less  than  ten  days  in  close  custody. 

Art.  154.  After  being  employed  for  eighteen  months  in  solitary 
labour,  the  convict,  if  he  can  procure  from  the  warden,  the  inspectors, 
the  chaplain,  and  the  teacher  (if  he  have  been  under  his  instruction),  a 
certificate  of  industry,  good  conduct,  and  a  disposition  to  reform,  may 
be  admitted  to  a  working  class,  not  exceeding  ten,  to  work  at  some 
useful  trade  ;  but  no  one  shall  enjoy  this  privilege  the  value  of  whose 
labour  during  the  eighteen  months  shall  not  have  exceeded  the  expense 
of  his  clothing  and  food,  unless  he  shall  have  lost  by  sickness  a  number 
of  days'  labour,  of  which  the  value  shall  be  equal  to  the  deficiency  in 
his  account. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  711 

Art.  155.  Each  working  class  shall  be  separately  employed  in  a 
different  work-shop,  without  any  communication  the  one  class  with 
another,  and  shall  be  under  the  direction  of  an  under-keeper,  who  shall 
permit  no  communication  between  the  individuals  composing  it  but  that 
necessary  for  Ihe  business,  and  any  breach  of  this  rule  shall  be  punished 
by  close  confinement  for  such  time  as  the  warden  shall  direct,  and  by 
a  return  to  solitary  labour. 

Art.  156.  At  the  dawn  of  day  the  convict  shall  be  made  to  rise  and 
to  clear  out  his  sleeping  cell,  which  shall  then  be  locked;  he  shall  then, 
after  washing,  commence  his  labour,  which  shall  continue,  including 
the  hour  for  exercise  at  the  machine  and  the  attendance  on  the  teacher 
and  the  time  of  receiving  the  visits  of  the  other  officers,  from  the  rising 
to  half  an  hour  before  the  setting  of  the  sun  every  day  except  Sundays, 
excepting  one  hour  for  breakfast  and  one  hour  and  a  half  for  dinner, 
and  the  supper  shall  be  given  when  the  work  of  the  day  is  finished. 

Art.  157.  After  sunset  and  before  it  is  dark,  all  the  convicts  shall 
be  locked  up  in  their  separate  cells. 


CHAPTER  III. 

Of  the  treatment  of  prisoners  confined  for  life. 

Art.  158.  The  convicts  who  are  confined  for  life  on  a  third  convic- 
tion, for  an  offence  which  if  it  had  been  the  first,  would  have  been 
punishable  by  imprisonment  for  a  term  of  years  only,  shall,  in  all 
respects,  be  treated  like  the  prisoners  confined  for  a  term,  except  that 
the  prison  uniform  shall  be  different,  and  shall  designate  by  three  dif- 
ferent colours  the  number  of  their  offences. 

Art.  159.  Those  convicted  of  murder  without  any  aggravating  cir- 
cumstances, and  for  rape,  shall  be  strictly  confined  to  their  respective 
cells  and  adjoining  courts  ;  in  which  last  they  may  be  permitted  to 
labour,  except  for  two  months  consecutively  in  every  year,  commencing 
on  the  anniversary  of  their  crime,  during  which  period  they  shall  only 
come  into  the  court  during  the  time  necessary  to  cleanse  the  cell ;  and 
on  the  anniversary  of  the  commission  of  their  crime  the  convict  shall 
have  no  allowance  of  food  for  twenty-four  hours,  during  which  fast  he 
shall  receive  the  visit  of  the  chaplain,  who  shall  endeavour  by  exhorta- 
tion and  prayer  to  bring  him  to  repentance. 

Art.  160.  Murderers  of  all  description  and  those  convicted  of  rape, 
shall  recejve  no  visits  except  from  the  inspectors,  the  wardens,  officers 
and  attendants  of  the  prison,  and  from  those  who  are  constituted  visitors 
of  the  prison.  They  shall  have  no  books,  but  selections  from  the  Bible 
and  such  other  books  of  religion  and  morality  as  the  chaplain  shall  deem 
proper  to  produce  repentance  and  fix  their  reliance  on  a  future  state. 
Their  uniform  and  diet  shall  be  such  as  is  hereinafter  directed. 

Art.  161.  Infanticides  shall  be  treated  in  all  respects  like  those  guilty 
of  unaggravated  murder,  except  that  the  confinement  without  labour 
shall  continue  three  months  consecutively  in  each  year. 

Art.  162.  Assassins  shall  be  confined  without  labour  for  six  months 
consecutively  in  every  year,  and  treated  in  the  manner  above  directed. 

Art.  163.  Parricides  shall  not  be  indulged  in  the  performance  of  labour 
at  any  time,  but  shall  be  closely  confined  in  a  cell,  without  a  court,  but 


712  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

of  such  dimensions  as  shall  be  sufficient  for  their  health,  and  in  other 
respects  shall  be  treated  like  other  murderers. 

Art.  164.  When  any  two  of  the  crimes  punishable  with  imprison- 
ment for  life,  such  as  rape  and  murder,  are  combined,  or  where  murder 
under  trust  is  perpetrated  by  assassination,  or  parricide  by  poison,  the 
convict  shall  receive  the  same  treatment  as  is  directed  for  parricides, 
except  that  on  the  return  in  each  month  of  the  day  on  which  the  crime 
was  committed,  they  be  debarred  from  all  allowance  of  food  for  twenty- 
four  hours,  and  shall,  during  such  fast,  receive  the  visits  and  exhorta- 
tion of  the  chaplain. 

Art.  165.  The  fast  shall  not  be  suffered  when  the  physician  shall 
certify  that  it  will  be  dangerous  to  the  health  of  the  convict. 

Art.  166.  Those  convicts  for  life  who  have  not  learned  to  read,  may 
be  instructed  by  the  teacher. 

Art.  167.  No  murderers,  in  any  degree,  shall  have  any  communica- 
tion with  other  persons  out  of  the  prison  than  the  inspectors  and  visiters; 
they  are  considered  dead  to  the  rest  of  the  world. 
.  Art.  168.  The  cells  of  murderers  (in  any  degree)  shall  be  painted 
black  within  and  without,  and  on  the  outside  thereof  shall  be  inscribed, 
in  large  letters,  the  following  sentence  : 

"In  this  cell  is  confined,  to  pass  his  life  in  solitude  and  sorrow, 
A.  B.  convicted  of  the  murder  of  C.  D.  [by  assassination,  parricide,  &c. 
describing  the  offence,  if  of  an  aggravated  kind] ;  his  food  is  bread  of  the 
coarsest  kind  ;  his  drink  is  water,  mingled  with  his  tears  :  he  is  dead 
to  the  world ;  this  cell  is  his  grave  ;  his  existence  is  prolonged  that  he 
may  remember  his  crime,  and  repent  it,  and  that  the  continuance  of 
his  punishment  may  deter  others  from  the  indulgence  of  hatred,  avarice, 
sensuality,  and  the  passions  which  lead  to  the  crime  he  has  committed. 
When  the  Almighty,  in  his  due  time,  shall  exercise  towards  him  that 
dispensation  which  he  himself  arrogantly  and  wickedly  usurped  towards 
another,  his  body  is  to  be  dissected,  and  his  soul  will  abide  that  judg- 
ment which  Divine  Justice  shall  decree." 

Art.  169.  The  same  inscription,  changing  only  the  words  "  this  cell" 
for  the  words  "  solitary  cell  in  this  prison,"  shall  be  made  on  the  outside 
of  the  prison  wall,  in  large  white  letters  on  a  black  ground.  The  inscrip- 
tions shall  be  removed  on  the  death  of  the  convicts  to  which  they  relate. 

Art.  170.  Inscriptions  shall  in  like  manner  be  made  on  the  cells  of 
those  convicted  of  rape,  and  on  the  outer  wall  of  the  prison,  to  this 
effect :  "  In  this  cell"  [or  on  the  outer  wall,  "  In  a  solitary  cell  in  this 
prison,]  forgotten,  or  remembered  only  to  be  detested  and  despised, 
lies  A.  B.  condemned  to  solitude  and  abstinence  during  life,  for  a  cow- 
ardly and  brutal  injury  to  a  woman." 


CHAPTER  IV. 

Of  the  clothing  and  diet  of  the  convicts. 

Art.  171.  The  uniform  of  the  prison  shall  be  a  jacket  and  trousers 
of  cloth  or  other  warm  stuff  for  the  winter,  and  lighter  materials  for 
the  summer.  The  form  and  colour  shall  be  determined  by  the  inspec- 
tors; but  they  shall  be  the  same  for  all  criminals  condemned  for  a  term, 
except  those  who  have  been  convicted  of  a  repetition  of  offences;  these 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  713 

shall  have  distinctive  marks  on  their  dress,  showing  the  number  of  their 
convictions. 

Art.  172.  Each  of  the  convicts  shall  have  such  number  of  coarse 
linen  shirts  and  trousers  of  the  same  material  in  summer  as  will  be 
sufficient  to  give  them  a  change  twice  in  every  week  ;  and  all  shall  be 
provided  with  other  articles  of  clothing  sufficient  to  preserve  health  and 
cleanliness. 

Art.  173.  The  convicts  for  murder  shall  be  clothed  in  black  outer 
garments,  spotted  and  streaked  with  red.  Those  confined  for  life,  for 
any  other  crime,  shall  wear  such  distinctive  marks  on  their  clothing  as 
shall  be  directed  by  the  inspectors,  to  designate  their  respective  crimes. 
Art.  174.  The  prison  allowance  of  food  is  one  pound  of  brown 
wheaten  bread  and  one  pint  of  mush  morning  and  evening  each  day; 
the  allowance  of  bread  may  be  varied  by  giving  three  days  in  the  week 
a  pound  and  a  half  of  Indian  corn  bread  instead  of  wheaten.  Water  is 
the  only  liquor  allowed  in  the  prison  ration. 

Art.  175.  Prisoners  who  labour  and  preserve  the  rules  of  the  prison 
are  allowed,  in  addition  to  the  prison  daily  allowance,  a  gill  of  mo- 
lasses, and  for  four  days  in  the  week  two  pounds  of  beef  or  pork  without 
bone,  daily,  made  into  six  messes,  varied  from  salt  to  fresh,  with  vege- 
tables, and  for  three  other  days  soup. 

Art.  176.  Those  whose  labour  and  industry  have  entitled  them  to 
work  in  classes,  shall  also  be  indulged  with  a  pint  of  small  beer,  or 
cider  diluted  with  water,  or  a  mixture  of  vinegar  and  water  sweetened 
with  molasses  once  every  day. 

Art.  177.  No  prisoner,  while  confined  to  his  cell  without  labour,  is 
to  receive  any  thing  but  the  prison  allowance. 

Art.  178.  No  tobacco  in  any  form  shall  be  used  by  the  convicts;  and 
any  one  who  shall  supply  them  with  it,  or  with  wine,  or  spirituous  or 
intoxicating  fermented  liquor,  shall  be  fined  two  hundred  dollars,  and 
if  an  officer,  be  dismissed. 

Art.  179.  Any  convict  whose  labour  shall  exceed  the  expense  of  his 
support,  according  to  the  account  herein  directed  to  be  kept,  shall  have 
the  privilege  of  directing  one-tenth  part  thereof  to  be  expended  in  the 
purchase  of  books,  to  be  approved  by  the  inspectors,  or  such  articles, 
excepting  food  or  liquors,  as  he  may  desire,  and  as  may  not  be  incon- 
sistent with  the  prison  rules. 

Art.  180.  Any  convict,  other  than  those  convicted  of  murder  or 
rape,  who  has  been  steadily  employed  for  eighteen  months,  and  is  guilty 
of  no  infraction  of  the  prison  discipline,  may,  once  in  every  six  months, 
receive  the  visit  of  any  friend  or  relation,  of  the  same  sex,  for  not  more 
than  fifteen  minutes,  in  the  presence  of  a  keeper,  on  a  written  permis- 
sion signed  by  two  inspectors. 

Art.  181.  No  person,  who  is  not  an  official  visitor  of  the  prisons,  or 
who  has  not  a  written  permission  from  one  of  them  ;  or  from  one  of 
the  inspectors,  is  allowed  to  visit  the  same.  The  official  visiters  are, 
the  governor,  president  of  the  senate,  members  of  the  general  assembly, 
the  secretary  of  state,  the  attorney  general,  the  judges  of  all  the  courts 
in  the  state,  the  mayor,  recorder,  and  members  of  the  city  council  of 
the  city  of  New  Orleans,  the  directors  of  all  the  charitable  incorporated 
societies  in  the  city  of  New  Orleans. 

Art.  182.  None  but  the  official  visiters  can  have  any  verbal  or  written 
communication  with  the  convicts,  nor  shall  any  visitor  whatever  be 
permitted  to  deliver  or  receive  from  any  of  the  convicts  any  letter  or 
4  P 


714  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

message  whatever,  or  to  supply  them  with  any  article  of  any  kind, 
under  the  penalty  of  two  hundred  dollars  fine. 

Art.  183.  It  is  the  duty  of  any  visiter,  who  shall  discover  any  abuse, 
infraction  of  law,  or  oppression,  immediately  to  make  the  same  known 
to  the  board  of  inspectors,  or  to  the  governor  if  the  inspectors  or  either 
of  them  are  implicated. 

Art.  184.  No  male  visiter  shall  visit  the  female  convicts  but  in  the 
presence  of  the  matron. 


CHAPTER  V. 

Of  the  treatment  of  the  female  convicts. 

Art.  185.  The  female  convicts  shall,  as  well  as  the  male,  each  be 
lodged  in  separate  cells. 

Art.  186.  Such  of  those  confined  for  a  term  of  years  as  are  capable, 
by  their  habits  or  strength,  shall  be  selected  by  the  matron  to  perform 
the  domestic  services  of  the  female  division  and  for  the  washing  of  the 
clothes  for  the  men's  department.  Those  who  are  so  employed  shall, 
during  the  day,  be  kept  under  the  inspection  of  the  matron  or  her  as- 
sistants, and  not  suffered  to  have  any  conversation  but  relative  to  the 
business  in  which  they  are  engaged. 

Art.  187.  The  others,  not  so  selected,  shall  be  employed  in  needle- 
work, spinning,  or  other  suitable  occupations.  They  shall,  on  receiv- 
ing the  necessary  certificate  of  order  and  industry  from  the  matron  and 
chaplain,  be  entitled  to  the  same  advantages  of  education  and  social 
labour  that  are  directed  for  the  male  convicts.  The  classes  for  educa- 
tion and  for  labour  may  consist  of  such  number  as  the  matron,  with 
the  approbation  of  the  warden  or  inspectors,  shall  desire. 

Art.  188.  The  regulations  with  respect  to  diet  are  applicable  to  the 
female  department,  except  that  the  matron  may  allow  to  the  industrious 
and  orderly,  tea  for  their  breakfast,  if  they  prefer  it  to  mush. 

Art.  189.  The  dress  for  the  female  convicts  shall  be  regulated  by  the 
matron,  with  the  approbation  of  the  inspectors. 

Art.  1 90.  Female  convicts  for  life  shall  be  treated  in  the  same  man- 
ner as  the  males,  but  under  the  direction  of  the  matron. 


TITLE  III. 


OF   THE  SCHOOL  OF   REFORM. 


CHAPTER  I. 

Of  the  persons  to  be  admitted  into  the  school  of  reform. 

Art.  191.  All  persons  under  the  age  of  eighteen  sentenced  to  impri- 
sonment and  labour  (unless  for  life),  and  all  vagrants  under  that  age 
and  above  six  years,  shall  be  sent  to  the  School  of  Reform. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  715 

Art.  192.  All  minors  above  six  and  under  eighteen  years  of  age, 
who  have  no  visible  means  of  honest  subsistence  and  are  not  supported 
by  any  friend  or  relation  ;  all  common  beggars  within  the  said  age  of 
eighteen  ;  all  females  under  seventeen  years  of  age,  who  live  by  pros- 
titution in  a  DISORDERLY  HOUSE,  shall  be  considered  as  vagrants  under 
the  last  article,  and  may,  by  order  of  the  mayor  of  New  Orleans,  or  the 
parish  judge  and  two  other  magistrates,  be  committed  to  the  School  of 
Reform. 

Art.  193.  All  minors  above  nine  and  under  the  age  of  fifteen,  who 
shall  commit  an  offence  of  which  they  shall  be  acquitted  on  account  of 
the  want  of  sufficent  discretion  to  know  the  nature  of  the  offence,  may, 
at  the  discretion  of  the  court,  be  committed  to  the  School  of  Reform. 

Art.  194.  In  like  manner  a  minor,  who  being  accused  of  a  crime 
and  shall  be  acquitted  by  showing  that  at  the  time  of  the  commission 
thereof  he  was  under  the  age  of  nine  years,  may,  at  the  discretion  of 
the  court,  be  sent  to  the  School  of  Reform. 

Art.  195.  In  cases  of  misdemeanor,  committed  by  a  minor  under 
eighteen  years  of  age,  and  punishable  by  simple  imprisonment  in  close 
custody,  the  court  may  also,  at  their  discretion,  send  the  defendant  to 
the  School  of  Reform. 

Art.  196.  In  exercising  the  discretion  given  by  the  three  last  preced- 
ing articles,  the  court  must  consider  that  the  object  of  the  School  of 
Reform  is  not  only  to  punish  by  restraint,  but  to  separate  the  juvenile 
offender  from  the  association  of  vice,  to  afford  him  the  means  of  educa- 
tion, religious  and  moral  instruction,  and  instruction  in  some  mechanic 
art,  so  as  to  make  him  a  useful  member  of  society  ;  and  that  where, 
from  the  circumstances  of  the  case,  these  objects  will  probably  be 
attained  without  committing  the  defendant  to  the  School  of  Reform,  that 
this  public  institution  ought  not  to  be  so  burthened. 


CHAPTER  II. 

Of  the  mode  of  reception. 

Art.  197.  Every  one  committed  to  the  School  of  Reform  shall  be 
thoroughly  cleansed,  and  clothed  in  the  uniform  of  the  house,  which 
shall  be  comfortable  and  adapted  to  the  season. 

Art.  198.  The  name,  age,  sex,  place  of  nativity  of  the  person  com- 
mitted, names  and  place  of  abode  and  occupation  of  his  parents,  the  cause 
of  commitment,  and  the  authority  by  which  it  was  made,  shall  be 
entered  in  a  book  specially  provided  for  that  purpose  by  the  warden. 

Art.  199.  The  chaplain,  or  teacher,  and  the  matron  (if  the  person 
committed  be  a  female),  or  the  warden  (if  a  male),  shall  interrogate  the 
party  as  to  the  course  of  life  he  has  pursued,  and  shall  make  an  abstract 
of  his  answers  in  the  book  above  mentioned  ;  but  no  other  means 
shall  be  used,  but  those  of  persuasion,  to  obtain  the  truth  on  such  inter- 
rogatory. 

Art.  200.  After  some  time  given  to  solitary  reflection,  proportioned 
to  the  age  and  degree  of  depravity  of  the  offender,  which  shall  not  ex- 
ceed, in  any  case,  twelve  hours,  the  advantages  of  industry,  obedience 
and  attention  to  instruction,  and  the  certainty  of  punishment  for  a  con- 


716  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

trary  course,  shall  be  impressed  upon  him  by  the  warden,  or,  if  a  female, 
by  the  matron,  and  he  shall  then  be  instructed  and  employed  as  is 
hereinafter  directed. 


CHAPTER  III. 

Of  the,  instruction  in  the  school  of  reform. 

Art.  201.  The  time  of  school  instruction  shall  be  one  hour,  to  com- 
mence at  sunrise,  and  one  hour  after  labour  in  the  afternoon. 

Art.  202.  The  children  shall  be  taught  reading  and  writing  in  the 
French  and  English  language,  and  arithmetic  ;  and  such  of  the  boys  as 
show  an  aptitude  for  learning,  in  the  opinion  of  the  teacher  and  warden, 
shall  be  taught  geography,  land  surveying,  and  navigation. 

Art.  203.  Before  the  instruction  begins,  select  portions  of  the  scrip- 
tures shall  be  read  morning  and  evening. 

Art.  204.  Premiums  of  books  and  badges  of  merit  shall  be  given  to 
the  scholars  by  the  warden,  on  the  recommendation  of  the  teachers,  to 
the  children  who  shall  show  the  most  diligence  and  be  distinguished 
for  orderly  conduct. 

Art.  205.  A  small  collection  of  entertaining  and  instructive  books 
shall  also  be  provided  for  the  use  of  those  who  have  badges  of  merit. 

Art.  206.  The  teacher  has  no  greater  power  of  correction  than  is 
given  by  law  in  ordinary  schools,  and  it  extends  only  to  faults  com- 
mitted in  relation  to  the  literary  instruction. 

Art.  207.  No  punishment  shall  be  inflicted  on  any  of  the  females  for 
faults  committed  in  school  but  by  the  matron,  or  in  her  presence. 

Art.  208.  The  boys  and  girls  shall  be  taught  separately,  and  the 
matron,  or  her  assistant,  shall  always  be  present  during  the  instruction 
of  the  girls. 

Art.  209.  Examinations  of  the  scholars  shall  be  had  once  every  three 
months,  in  the  presence  of  the  inspectors  and  such  of  the  visiters  as 
choose  to  attend. 

Art.  210.  The  teacher  shall  use  the  system  of  mutual  instruction, 
and  shall  endeavour  to  qualify  such  of  the  children,  of  both  sexes,  as 
show  a  particular  aptitude,  to  be  themselves  teachers  according  to  the 
same  method. 


CHAPTER  IV. 

Of  employment  in  the  school  of  reform. 

Art.  211.  All  the  hours  between  sunrise  and  sunset  that  are  not 
hereby  appropriated  to  instruction,  to  meals,  or  to  relaxation  and  exer- 
cise, must  be  employed  in  labour. 

Art.  212.  The  labour  to  be  performed  shall  be  such  as,  in  the  opin- 
ion of  the  inspectors,  shall  be  best  calculated  to  procure  a  subsistence 
for  the  prisoners  when  they  shall  be  restored  to  liberty. 

Art.  213.  Each  of  the  boys  shall  be  taught  a  mechanic  art,  and  for 
this  purpose  the  warden  shall,  with  the  approbation  of  the  inspectors, 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  717 

contract  with  mechanics  to  find  materials,  to  send  foremen  to' the  pri- 
son to  superintend  their  work  and  teach  them  the  different  trades,  pay- 
ing a  reasonable  sum  for  the  value  of  their  labour.  The  necessary 
tools  and  implements  shall  be  provided  by  the  institution. 

Art.  214.  The  foremen  so  employed  by  the  mechanics  shall  be  men 
of  good  characters,  approved  by  the  inspectors  ;  they  shall  remain  in 
their  respective  workshops  during  the  hours  of  labour,  preserve  order 
therein,  and  keep  the  boys  at  work,  teaching  them  carefully  all  the 
branches  of  the  trade  ;  but  they  shall  inflict  no  punishment,  unless  by 
direction  of  the  warden  and  in  his  presence,  and  such  punishment  shall 
be  such  moderate  correction  as  a  master  is  authorized  by  law  to  inflict 
on  an  apprentice. 

Art.  215.  The  foremen  shall  make  daily  reports  to  the  warden  of 
each  boy  under  his  care,  for  which  purpose  he  shall  keep  a  calendar 
containing  the  names  of  each  of  them,  on  which  he  shall  make  marks, 
denoting  offences,  or  extraordinary  diligence,  or  good  conduct,  which 
shall  be  shown  daily  to  the  warden. 

Art.  216.  Great  care  shall  be  taken  to  suit  the  employment  to  the 
physical  force  and  constitution  of  each  boy  ;  and  the  warden  shall  fre- 
quently visit  the  workshops,  and  see  that  unreasonable  tasks  are  not 
imposed  by  the  foremen. 

Art.  217.  If  no  such  contract  should  be  offered  for  the  labour  of  the 
boys  as  the  warden  and  inspectors  shall  deem  advantageous,  proper 
persons  may  be  employed  by  the  inspectors  to  instruct  them  in  some 
mechanic  art. 

Art.  218.  Besides  the  mechanic  arts  the  boys  shall  be  exercised  for 
two  periods  in  each  day  (not  exceeding  half  an  hour  each  time)  in 
some  laborious  employment,  that  shall  require  as  much  as  possible,  the 
exercise  of  all  the  muscular  powers,  to  strengthen  and  fit  them  for  any 
hard  labour  to  which  they  may  afterwards  be  called  ;  for  this  purpose 
a  hydraulic  or  other  machine,  to  be  moved  by  manual  labour,  shall 
be  constructed  in  the  enclosure  of  the  School  of  Reform,  and  a  mast, 
with  yards  and  standing  and  running  rigging,  shall  be  erected,  on 
which  they  shall  be  taught  to  climb,  and  prepare  themselves  for  a  sea- 
faring life. 

Art.  219.  The  tread-mill  shall  not  be  introduced  into  this  or  any 
other  of  the  places  of  confinement  established  by  this  Code. 

Art.  220.  The  girls  shall  be  taught  needle-work,  and  be  employed 
in  washing,  ironing,  baking,  and  other  works  of  housewifery  ;  and 
they  may  also  be  taught  such  trades  as  women  are  usually  employed 
in,  at  the  time  and  place  in  which  they  are  confined.  The  matron 
shall  superintend  this  part  of  their  employment,  and  none  but  female 
instructors  in  any  branch,  except  the  school-master,  shall  be  admitted 
into  their  department. 

Art.  221.  The  children  of  both  sexes  shall,  by  turns,  be  employed 
in  the  menial  service  of  the  establishment  to  which  they  belong — 
waiting  at  the  table,  cleaning  the  workshops  and  eating-rooms,  and 
other  places  for  the  common  resort  of  the  persons  confined  ;  but  each 
one  is  bound  to  sweep  and  clean  his  own  cell. 


718  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 


CHAPTER  V. 

Of  the  distribution  of  time  in  the  school  of  reform. 

Art.  222.  At  the  dawn  of  day  all  the  prisoners,  except  those  in  the 
infirmary  and  those  confined  to  solitude  for  a  breach  of  prison  disci- 
pline, shall  leave  their  cells  ;  each  one  shall  put  up  his  bed,  remove 
every  thing  that  ought  to  be  removed,  and  sweep  the  cell,  which  shall 
be  locked. 

Art.  223.  Each  one  shall  then  wash,  and  twice  every  week,  when 
the  weather  will  permit,  shall  bathe.  They  shall  then  assemble  in  the 
school-room,  when  a  select  portion  of  scripture  and  prayers  shall  be 
read  ;  the  school  shall  then  be  opened,  and  the  instruction  continue 
for  one  hour  ;  immediately  after  which  breakfast  shall  be  served. 

Art.  224.  After  breakfast  half  an  hour  shall  be  allowed  for  exercise 
in  the  court,  but  always  in  the  presence  of  the  warden,  or  some  officer 
of  the  establishment  for  the  boys,  or  of  the  matron  or  her  assistant  for 
the  girls  ;  immediately  after  the  expiration  of  this  half  hour,  the  boys 
shall  be  put  to  labour,  for  another  half  hour,  on  the  machine  men- 
tioned in  the  last  preceding  chapter,  and  the  girls  be  allowed  to  con- 
tinue their  exercise. 

Art.  225.  The  boys  shall  then  be  conducted  to  the  workshops, 
where  they  shall  be  employed  for  three  hours  and  a  half ;  at.  the  ex- 
piration of  which  time  they  shall  wash  and  go  to  dinner,  and  after 
dinner  shall  have  another  half  hour  for  exercise,  and  labour  on  the 
machine,  and  then  be  employed  in  the  shops  until  an  hour  before 
sunset,  when  they  shall  again  assemble  for  instruction  in  the  school 
for  an  hour  ;  after  the  evening  school,  half  an  hour  shall  be  given  for 
exercise,  and  then  each  one  shall  be  locked  in  his  separate  cell. 

Art.  226.  In  the  summer  the  inspectors  may  dispense  with  the  hard 
labour  in  the  heat  of  the  day,  and  appropriate  it  to  instruction  or 
relaxation,  at  their  discretion. 

Art.  227.  On  the  certificate  of  the  physician,  that  the  labour,  or 
any  part  of  it,  cannot  be  undergone  by  any  one  of  the  persons  con- 
fined without  danger  to  his  health,  it  shall  be  remitted  or  modified  by 
the  warden. 


CHAPTER  VI. 

Of  diet,  lodging^  and  clothing. 

Art.  228.  The  diet  shall  be,  for  breakfast,  coffee  made  of  parched 
grain,  and  mush  alternately,  both  sweetened  with  molasses,  and  corn 
bread  ;  for  dinner,  beef  or  mutton  soup,  with  vegetables  and  corn 
bread,  and  a  quarter  of  a  pound  of  the  flesh  of  which  the  soup  is  made, 
for  each,  for  four  days  in  the  week — three  days,  fish  or  pease  soup 
without  meat ;  supper,  the  same  as  the  breakfast.  At  all  the  meals, 
there  must  be  bread  of  sufficient  quantity  to  satisfy  their  hunger ; 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  719 

and  when  the  state  of  the  market  will  permit,  wheat  bread  may  be 
substituted  for  corn.  Water  is  the  only  drink  allowed. 

Art.  229.  The  inspectors  may,  when  circumstances  require  it, 
change  the  ration  of  food,  but  it  must  always  be  coarse,  but  abundant 
and  nutritive. 

Art.  230.  Each  of  the  persons  confined  shall  lodge  in  a  separate  cell, 
shut  with  a  door  having  grates  at  the  top  and  bottom,  which,  in  cold 
weather,  the  occupant  may  cover  with  a  sliding  shutter,  on  the  inside. 
The  cell  shall  contain  a  box  for  a  night-pan,  and  a  sheet  of  canvas, 
stretched  by  loops  at  the  four  corners  and  suspended  by  hooks  in  the 
corners  of  the  cell  for  a  hammock,  with  sheets  and  one  blanket  for 
summer,  and  two  blankets  and  a  corn-husk  mat  in  winter.  This  bed- 
ding shall  be  aired  and  washed  at  such  periods  as  the  physician  or 
warden  shall  direct. 

Art.  231.  For  the  boys  the  clothing  shall  consist  of  a  cap,  a  shirt 
and  jacket  and  trousers  of  coarse  linen  or  cotton,  and  shoes,  for  the 
summer  ;  a  jacket  and  trousers  of  cloth,  with  socks  and  shoes,  for  the 
winter;  the  linen  to  be  changed  once  a  week  in  winter  and  twice  a 
week  in  summer.  The  clothing  for  the  girls  shall  be  directed  by  the 
matron  with  the  approbation  of  the  inspectors. 


CHAPTER  VII. 

Of  the  police  of  the  school  of  reform. 

Art.  232.  The  warden  shall  see  that  every  one  confined  in  the  male 
department,  excepting  those  in  the  infirmary,  is  locked  up  in  his  sepa- 
rate cell,  at  the  time  for  that  purpose  before  designated,  and  that  all 
the  fires  in  every  part  of  the  building  are  extinguished.  No  light, 
under  any  pretence,  is  permitted  in  the  cells  ;  but  lights  shall  be  kept 
during  the  night  in  the  galleries  and  passages  leading  to  them. 

Art.  233.  A  reflected  light  may  be  thrown  into  the  cells  of  such  as 
may  desire  to  use  the  interval  between  the  locking  of  the  cell  and  nine 
at  night  in  reading  or  study,  but  it  shall  be  continued  in  favour  of  those 
only  who  can  show  the  teacher  on  the  following  morning  that  they 
have  used  it  to  advantage. 

Art.  234.  A  watch  shall  be  kept  at  night  by  one  of  the  under- keepers, 
and  the  warden  may  also  employ  with  the  keeper  such  of  the  boys,  by 
turns,  as  may  show  by  their  conduct  that  such  confidence  may  be 
reposed  in  them. 

Art.  235.  The  roll  shall  be  called  of  all  the  persons  confined  at  the 
opening  of  the  school  in  the  morning,  and  at  night  previous  to  the  re- 
tiring ;  and  the  names  of  all  those  employed  in  the  different  workshops 
shall  also  be  called  at  the  hours  of  labour. 

Art.  236.  The  meals  shall  be  taken  in  the  presence  of  the  warden  or 
some  other  officer  of  the  establishment.  The  males  shall  be  divided 
into  classes  of  ten,  who  shall  be  seated  at  separate  tables,  and  one  of  the 
boys  the  most  distinguished  for  his  orderly  conduct,  in  each  class,  to 
be  called  the  captain  of  the  class,  shall  preside  at  each  table  ;  he  shall 
see  that  silence  is  observed  during  the  meal,  shall  designate  two  of  the 
class,  by  regular  rotation,  to  wait  on  the  others,  and  take  care  that  each 


720  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

one  receives  his  full  allowance,  and  he  shall  report  all  breaches  of  or- 
der to  the  warden. 

Art.  237.  The  captain  of  the  class  may  be  degraded  for  negligence 
or  misbehaviour  ;  and  where  several  boys  in  a  class  are  equally  deserv- 
ing, they  shall  have  the  distinction  by  turns  weekly. 

Art.  238.  During  the  hours  of  recreation,  no  sports  but  those  which 
exercise  the  body  shall  be  allowed,  and  no  wagering  permitted  ;  but 
the  warden  may  award  prizes  for  dexterity  or  skill. 

Art.  239.  The  utmost  attention  must  be  paid  to  cleanliness  in  the 
persons,  clothing,  and  bedding,  and  every  part  of  the  establishment  ; 
and  it  is  part  of  the  duty  of  all  the  officers  employed,  of  the  visitors, 
and  particularly  of  the  physician,  to  report  to  the  warden  every  infrac- 
tion that  may  be  observed  of  this  rule.  There  shall  be  a  bathing  room 
for  each  of  the  sexes,  and  all  the  persons  confined  shall  be  forced  to 
bathe  at  least  twice  in  every  week  during  the  seasons  that  will  admit  of  it. 


CHAPTER  VIII. 

Of  rewards  and  punishments. 

Art.  240.  The  rewards  shall  consist  of  badges,  prizes  of  books,  the 
use  of  the  library,  and  marks  of  distinction  and  confidence,  such  as 
being  made  captain  of  a  class,  watchmen,  or  monitors  in  the  school. 
They  shall  be  conferred  by  the  matron  for  the  female  department,  by 
the  warden  for  the  male,  and  by  the  inspectors  for  both  ;  but  all  re- 
wards, for  merit  in  school,  shall  be  on  the  recommendation  of  the  teacher. 

Art.  241.  The  punishments  are,  deprivations  of  distinctions  formerly 
obtained  ;  such  moderate  personal  castigation  as  does  not  draw  blood, 
leave  a  permanent  mark,  or  unfit  the  child  for  immediate  attention  to 
his  instruction  or  labour;  common  diet ;  degradation  from  the  class  ; 
confinement  in  solitude,  or  in  a  straight  waistcoat  or  arm  straps. 

Art.  242.   Irons  or  chains  are  not  permitted  under  any  pretence. 

Art.  243.  The  teacher  may  preserve  order  in  the  school  for  boys  by 
the  moderate  chastisement  mentioned  in  the  second  article  of  this  sec- 
tion ;  in  the  female  school  he  may  direct  it  to  be  done  by  the  female 
teachers.  None  of  the  other  punishments  can  be  inflicted  but  by  order 
of  the  warden,  or,  if  on  a  female,  but  by  order  of  the  matron,  subject 
always  to  the  revision  of  the  warden. 

Art.  244.  All  the  punishments  may  be  continued,  or  be  directed  to 
cease  by  the  inspectors,  or  any  two  of  them. 

Art.  245.  Escape  or  attempt  to  escape,  violence  used  towards  any 
officer  of  the  establishment,  a  refusal  to  work  or  receive  instruction,  or 
an  attempt  to  persuade  others  to  resist  the  authority  of  the  officers,  shall 
be  punished  by  all  the  kinds  of  punishment  above  enumerated,  for  such 
period  as  the  inspectors  and  warden,  or  inspectors  and  matron  may  direct. 

Art.  246.  The  warden  and  the  matron,  with  the  approbation  of  the 
inspectors,  shall  frame  rules  for  the  preservation  of  order,  not  contrary 
to  any  thing  contained  in  the  Code  or  this  chapter.  The  said  rules 
shall  designate  what  breaches  shall  be  punishable  by  any  of  the  penalties 
above  enumerated  and  in  what  degree.  These  rules  shall  be  put  up  in 
the  different  work-rooms,  schools,  and  cells — shall  be  read  to  every 
one  on  his  reception  in  the  house,  and  shall  be  rigidly  enforced. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  721 


CHAPTER  IX. 

Of  the  discharge  from  the  school  of  reform. 

Art.  247.  Discharges  from  the  School  of  Reform  may  be  either  by 
the  expiration  of  the  term  of  service  or  by  apprenticeship. 

Art.  248.  Whatever  may  be  the  term  of  imprisonment  designated 
by  law  for  the  offence  of  which  the  party  sent  to  the  School  of  Reform 
is  convicted,  such  party  cannot  be  discharged  (unless  by  apprenticeship), 
if  a  female,  before  she  has  attained  the  age  of  nineteen,  or  if  a  male, 
before  twenty-one. 

Art.  249.  Those  who  are  sentenced  for  a  term  that  will  not  expire 
until  after  they  have  respectively  attained  the  ages  mentioned  in  the 
last  preceding  article,  and  whose  conduct  has  not  entitled  them  to  the 
recommendation  hereinafter  mentioned  for  apprenticeship,  shall,  within 
six  months  after  attaining  the  ages  aforesaid,  be  transferred  to  the  Peni- 
tentiary to  serve  out  the  remainder  of  the  term. 

Art.  250.  Those  who  are  entitled  to  the  recommendation,  and  who 
have  not  been  apprenticed  for  some  other  cause,  shall  be  discharged 
after  having  attained  the  age  of  twenty-two  if  a  male,  or  twenty  if  a 
female,  although  the  term  of  imprisonment  in  the  sentence  be  for  a 
longer  time. 

Art,  251.  The  warden  is  authorized  to  bind  out}  by  indentures  of 
apprenticeship,  such  of  the  prisoners  confined  as  come  within  the  de- 
scription contained  in  the  next  succeeding  article  ;  and  the  indentures 
shall  impose  the  same  obligations  and  give  the  same  rights  and  remedies 
as  indentures  of  apprenticeship  made  by  a  parent  or  guardian,  with  the 
assent  of  the  minors,  under  the  civil  law  of  the  state. 

Art.  252.  In  order  to  be  legally  bound,  pursuant  to  the  last  article, 
the  apprentice  must  have  been  two  years  in  the  School  of  Reform  ;  he 
must  have  learned  to  read,  write,  and  understand  the  first  three  rules  in 
arithmetic  ;  and  must  have  obtained  a  certificate  signed  by  the  warden, 
(and  if  a  female  by  the  matron),  approved  by  the  inspectors,  declaring 
that  the  moral  conduct  and  diligence  of  the  party  has  evinced  such  a 
reformation  as,  in  their  opinion,  will  render  it  safe  to  receive  him  as 
an  apprentice. 

Art.  253.  The  duration  of  the  apprenticeship  shall  be  until  the  party 
bound  shall  attain  the  age  of  twenty-one  if  a  male,  or  nineteen  if  a 
female,  unless,  at  the  time  of  making  the  indenture,  the  male  appren- 
tice shall  have  attained  nineteen  years  of  age,  or  the  female  seventeen  ; 
in  which  case  the  indenture  may  be  for  three  years,  if  the  term  of  the 
sentence  does  not  expire  before  ;  but  if  the  term  should  expire  before, 
the  apprentice  cannot  be  bound  for  a  longer  term  than  the  attainment  of 
twenty-one  years  for  a  male,  or  nineteen  for  a  female,  without  his  or 
her  consent,  and  then  only  for  the  said  term  of  three  years. 

Art.  254.  The  male  apprentices  shall  be  put  oul,  if  possible,  to  me- 
chanics of  the  same  trade  they  have  been  taught  in  the  School  of  Reform  ; 
if  no  mechanic  pursuing  the  same  profession  offers,  some  other  demand- 
ing, as  near  as  may  be  the  same  species  of  labour,  shall  be  preferred  ; 
but  whatever  trade  may  have  been  taught  to  the  apprentice,  he  may, 
by  his  own  consent,  be  apprenticed  to  a  farmer  or  a  mariner. 
4Q 


722  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

Art.  255.  The  conditions  of  the  articles  of  apprenticeship  shall  be, 
on  the  part  of  the  apprentice,  obedience  to  lawful  commands,  and  dili- 
gence, sobriety,  and  honesty  ;  on  the  part  of  the  master,  that  he  will 
perfect  the  apprentice  in  the  trade  he  has  been  taught,  or  teach  him  the 
new  business  if  such  be  the  case,  that  he  will  continue  his  schooling  at 
least  one  day  in  the  week,  that  he  will  provide  him  necessary  food, 
clothing,  lodging,  medical  assistance,  and  that,  at  the  end  of  the  period, 
he  will  give  him  new  clothing  and  a  sum  of  money  to  be  specified  in  the 
indenture,  and  such  as  the  warden  and  the  master  shall  think  reasonable. 

Art.  256.  No  one  shall  be  apprenticed  to  any  one  residing  out  of  the 
state,  nor  shall  the  indenture  be  assignable  without  the  assent  of  the 
apprentice. 

Art.  257.  The  clause  relating  to  the  teaching  and  perfecting  in  a 
trade  or  business,  is  not  indispensable  in  the  indenture  of  a  female. 

Art.  258.  No  female  shall  be  indented  to  an  unmarried  man,  or  to  a 
married  man  living  apart  from  his  wife. 

Art.  259.  It  shall  be  a  condition  in  the  indenture  between  the  war- 
den and  the  master,  that  a  report  shall  be  made  once  in  every  year  of 
the  conduct  of  the  apprentice  to  the  warden  ;  and  if  he,  has  reason  to 
believe  that  his  reformation  is  complete,  that  he  will  permit  him,  if 
within  the  city  of  New  Orleans  or  its  suburbs,  to  visit  the  school  and 
converse  with  the  others  still  there. 

Art.  260.  .The  convict  at  the  time  of  his  discharge,  whether  appren- 
ticed or  not,  shall  be  comfortably  clad,  and  the  inspectors,  at  their  dis- 
cretion, may  make  him  an  allowance  in  money,  or  deliver  him  books 
or  tools,  if  they  are  satisfied  with  his^conduct. 


CHAPTER  X. 

Of  visits. 

Art.  261.  Besides  the  persons  created  visitors  of  all  the  places  of 
confinement  by  this  Code,  and  those  who  may  receive  permission  from 
them,  the  parents  or  those  related  in  the  second  degree  to  the  persons 
confined  in  the  School  of  Reform,  may  visit  them  on  stated  days,  to  be 
appointed  by  the  warden  ;  but  when  he  is  apprehensive  that  evil  coun- 
sels may  be  given,  it  shall  always  be  in  the  presence  of  an  officer. 


TITLE  IV. 


OF  THE  PECUNIARY  CONCERNS  OF  THE  SEVERAL  PLACES  OF  CONFINEMENT. 

Art.  262.  The  board  of  inspectors  shall  appoint  an  agent,  who  shall 
make  all  purchases  and  sales  on  account  of  all  the  several  places  of  con- 
finement, including  the  House  of  Refuge  and  Industry,  keeping  regular 
sets  of  mercantile  books  for  each  of  the  said  institutions,  which  may 
be  examined  by  the  inspectors,  the  wardens,  or  any  of  the  visitors. 

Art.  263.  The  compensation  of  the  agent  shall  be  fixed  by  the  in- 
spectors, with  the  approbation  of  the  governor. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  723 

Art.  264.  The  regular  supplies  of  provisions,  and  of  all  other  arti- 
cles consumed  or  used  in  the  said  institutions  in  considerable  quantities, 
shall  be  furnished  by  contract,  and  adjudged  after  advertisement  to  the 
lowest  bidder ;  but  the  wardens  shall  examine  the  articles  furnished, 
and  have  the  right  to  reject  such  as  are  not  of  the  quality  contracted 
for.  The  physician  shall,  in  like  manner,  inspect  the  medicines  and 
hospital  furniture. 

Art.  265.  All  the  articles  manufactured  in  either  of  the  said  places 
which  are  not  made  for  manufacturers  by  contract,  in  the  manner  here- 
inafter provided,  shall  be  sold  by  the  agent  to  the  best  advantage,  under 
the  direction  of  the  inspectors. 

Art.  266.  Regular  and  minute  accounts  of  the  receipts  and  expendi- 
tures of  each  place  of  confinement,  including  the  House  of  Refuge,  shall 
be  furnished  each  quarter  by  the  inspectors  to  the  governor,  and  yearly 
accounts  to  the  legislature  on  the  first  day  of  their  annual  meeting. 

Art.  267.  All  moneys  appropriated  by  the  legislature  for  the  use  of 
either  of  the  said  places,  shall  be  drawn  -for  by  the  board  of  inspectors 
as  the  same  may  be  wanted,  in  favour  of  the  cashier  of  the  Louisiana 
State  Bank,  and  shall  by  him  be  carried  to  the  credit  of  the  board  of 
inspectors,  in  an  account  to  be  opened  with  them  in  their  official  capacity, 
for  the  use  of  the  particular  institution  for  which  the  appropriation  is 
made  (naming  it  in  the  account)  between  the  bank  and  the  inspectors. 

Art.  268.  Whenever  the  amount  of  money  in  the  hands  of  the  agent, 
received  on  account  of  either  or  all  of  the  institutions,  shall  exceed 
three  hundred  dollars,  he  shall,  within  two  days,  deposit  the  same  in 
the  said  bank  to  the  credit  of  the  account  opened  with  the  inspectors 
for  the  use  of  the  prison  to  which  it  belongs. 

Art.  269.  No  money  shall  be  drawn  from  the  bank,  on  either  of  the 
said  accounts,  but  by  a  draft  signed  by  a  majority  of  the  inspectors, 
specifying  on  account  of  which  prison  it  is  drawn,  for  what  purpose, 
and  to  whom  the  amount  is  due. 

Art.  270.  All  accounts  or  demands  against  the  prisons  shall  be  ex- 
amined, allowed,  and  paid  by  the  inspectors  ;  and  when  they  meet  to 
settle  such  accounts,  the  agent  shall  act  as  their  clerk  and  shall  make 
regular  entries  in  the  books  of  all  receipts  and  expenditures,  to  the 
account  of  the  institution  to  which  they  belong  ;  but  a  sum,  not  exceed- 
ing one  hundred  dollars,  may  be  placed  in  the  hands  of  each  warden, 
and  as  much  in  the  hands  of  the  agent,  to  pay  current  expenses,  to  be 
accounted  for  monthly  to  the  inspectors. 

Art.  271.  If  either  the  inspectors  or  the  agent  shall  fail  in  making 
any  deposit  in  the  manner  and  at  the  time  directed  by  either  of  the 
three  last  preceding  articles  ;  or  if  the  inspectors,  or  either  of  them, 
shall  draw  out  of  the  bank  any  moneys  belonging  to  or  appropriated 
for  either  of  the  said  places  of  confinement,  including  the  House  of 
Refuge,  in  any  other  manner  than  is  above  directed,  the  person  so 
offending  shall  pay  a  fine  of  five  hundred  dollars;  and  if  any  of  the  said 
moneys  which  are  either  not  deposited  when  by  the  said  articles  or 
either  of  them  they  ought  to  be,  or  are  drawn  out  of  the  bank  contrary  to 
the  directions  of  this  chapter,  shall  be  applied  to  any  other  use  than  to 
that  of  the  said  institutions,  or  one  of  them,  the  person  guilty  of  such 
misapplication  shall  be  dismissed  from  his  office,  be  imprisoned,  in  close 
custody,  for  sixty  days,  and  pay  a  fine  of  one  thousand  dollars. 

Art.  272.  The  wardens  of  the  several  prisons  shall  deliver  to  the  agent 
all  the  articles  manufactured  in  their  prisons  respectively,  which  are 
not  necessary  for  the  use  of  such  prison,  except  those  articles  manufac- 


724  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

tured  in  tlje  House  of  Detention  by  the  prisoners  there  who  have  pro- 
vided their  own  materials,  or  who  have  made  a  different  arrangement 
with  the  inspectors  for  the  disposal  of  the  proceeds  of  their  labour  ;  and 
excepting  also  the  articles  made  for  manufacturers  by  contract,  in  the 
Penitentiary,  School  of  Reform,  and  House  of  Refuge  and  Industry. 

Art.  273.  The  wardens  of  the  Penitentiary  and  of  the  School  of 
Reform  shall  each  be  allowed,  in  addition  to  their  salaries, 
per  cent,  on  the  gross  amount  of  sales  by  the  agent  of  the  articles  man- 
ufactured in  their  prisons  respectively,  after  deducting  only  the  cost  of 
the  materials  employed  in  the  articles  so  sold;  and  also  per  cent, 

on  the  amount  of  sums  paid  for  the  labour  of  the  convicts  by  manufac- 
turers ;  but  this  allowance  shall  be  forfeited  for  every  year  in  which 
the  wardens  shall  use  any  other  means  than  those  authorized  by  this 
Code  to  induce  the  convicts  to  labour,  either  by  way  of  punishment  or 
reward. 

Art.  274.  The  average  number  of  deaths  in  the  principal  penitentia- 
ries of  the  United  States  having  been  found  to  be  about  in 
every  hundred  annually,  (taking  the  average  of  the  number  of  prison- 
ers confined  at  all  times  during  the  year  as  the  basis  of  the  calculation 
for  the  whole  number,)  as  an  encouragement  to  use  greater  care  and 
attention  in  lessening  this  rate  of  mortality,  if  the  said  proportion  shall 
be  in  any  one  year  reduced  in  the  Penitentiary  of  this  state  more  than 
one  half  of  that  average,  the  governor  shall  present  to  the  physician 
books,  surgical  instruments,  or  plate,  of  the  value  of  dollars, 
which  testimonial  shall  be  doubled  in  value  if  the  proportion  be  reduced 
more  than  three-fourths. 

Art.  275.  The  average  number  of  re-convictions  in  the  principal 
cities  of  the  Union  having  been  found  to  be  about  in  every 

hundred  annually  of  those  committed  to  the  Penitentiary  in  those  cities; 
to  lessen-this  proportion  is  the  object  of  the  reformatory  part  of  prison 
discipline.  To  incite,  therefore,  the  officers  to  a  zealous  discharge  of 
this  part  of  their  duty,  if  in  any  one  year,  succeeding  the  third  year 
after  this  Code  shall  have  gone  into  operation,  the  number  of  re-com- 
mitments to  the  Penitentiary  shall  be  less,  in  any  one  year,  by  one-half 
than  that  proportion,  an  honorary  testimonial  of  that  fact,  consisting  of 
a  piece  of  plate  of  the  value  of  dollars,  shall  be  presented  by 

the  governor  to  the  inspectors,  the  wardens,  the  chaplains,  and  teachers, 
of  the  said  prison  ;  the  value  of  which  plate  shall  be  doubled  in  any 
year  in  which  the  said  proportion  is  reduced  to  less  than  three-fourths 
of  the  average  above  stated. 

Art.  276.  A  similar  testimonial  shall  be  given  to  the  matrons,  if  the 
like  reduction  takes  place  in  the  re-commitments  of  the  female  convicts. 

Art.  277.  The  amount  requisite  for  the  purchase  of  the  testimonials 
aforesaid,  shall  be  taken  from  the  recompense  fund,  created  by  the  Code 
of  Criminal  Procedure. 


TITLE  V. 

OF  THE  DISCHARGE  OF  THE  CONVICTS. 

Art.  278.  Whenever  a  convict  shall  be  discharged  by  the  expiration 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  725 

of  the  term  to  which  he  was  condemned,  or  by  pardon,  he  shall  take 
off  the  prison  uniform  and  have  the  clothes  which  he  brought  to  the 
prison  restored  to  him,  together  with  the  other  property,  if  any,  that  was 
taken  from  him  on  his  commitment,  that  has  not  been  otherwise  legally 
( disposed  of. 

Art.  279.  A  copy  of  his  account  with  the  prison,  made  out  in  the 
manner  hereinbefore  directed,  shall  be  given  to  him  ;  and  if  the  pro- 
ceeds of  his  labour  produce  any  balance  in  his  favour,  one  half  of  such 
balance  shall  be  paid  him. 

Art.  280.  Before  the  convict  is  dismissed,  the  chapter  of  the  Penal 
Code,  "  Of  the  Repetition  of  Offences,"  shall  be  read  to  him. 

Art.  281.  If  the  warden,  the  chaplain,  and  the  teacher,  have  been 
satisfied  with  the  morality,  industry,  and  order  of  his  conduct,  they 
shall  give  him  a  certificate  to  that  effect. 

Art.  282.  One  or  more  of  the  inspectors  shall  be  present  whenever 
a  convict  is  discharged,  who,  as  well  as  the  officers  of  the  prison,  shall 
inquire  into  his  future  prospects  and  designs  ;  shall  aid  him  in  an 
endeavour  to  procure  an  honest  support,  or  to  return  to  his  friends  ; 
shall  exhort  him  to  perseverance  in  habits  of  industry  ;  and  if  he  can 
find  no  other  employment,  and  is  desirous  of  maintaining  himself  by 
labour,  the  warden  shall  admit  him  into  the  House  of  Refuge,  herein- 
after provided  for. 

Art.  283.  If  the  warden  shall  discover  that  any  discharged  convict, 
instead  of  seeking  to  maintain  himself  by  labour,  shall  associate  with 
the  idle  and  profligate,  he  shall  immediately  proceed  against  him  as  a 
vagrant,  under  the  provisions  for  that  purpose  contained  in  the  Code  of 
Criminal  Procedure. 


TITLE  VI. 


HOW  THE  PROPERTY  OF  PERSONS  CONDEMNED  FOR  CRIME  SHALL  BE  DISPOSED  OF. 


CHAPTER  I. 

Of  the  property  of  convicts  condemned  to  imprisonment  and  labour 

for  a  term. 

Art.  284.  The  property  of  convicts  condemned  to  imprisonment  and 
labour,  may  be  administered  by  curators  during  the  term  for  which  they 
are  condemned.  The  letters  of  curatorship  are  revoked  by  their  pardon 
or  discharge;  but  such  revocation  does  not  invalidate  legal  acts  done  by 
the  curator. 

Art.  285.  Any  person  who  would  be  entitled  to  the  curatorship  of 
the  convict,  had  he  died  on  the  day  judgment  was  pronounced  against 
him,  shall  be  entitled  to  the  curatorship. 

Art.  286.  The  mode  of  proceeding  to  obtain  the  letters  of  curatorship 
shall  be  the  same  as  that  prescribed  in  case  of  death,  except  that,  instead 
of  alleging  and  proving  the  death  of  the  party,  the  record  of  his  con- 
demnation shall  be  produced  to  the  judge. 

Art.  287.  The  curatorship,  in  case  of  condemnation,  carries  with  it 

•"• 


726  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

all  the  consequences,  responsibilities,  rights,  and  duties,  that  result  from 
a  curatorship  to  a  person  deceased. 

Art.  288.  Curators  and  tutors  may  also  be  appointed  to  the  persons 
and  estates  of  the  children  of  the  convict,  in  the  like  manner  and  to 
the  same  persons  who  would  have  been  entitled  to  the  said  offices  if  the 
convict  had  been  dead. 

Art.  289.  The  curatorships  and  tutorships,  mentioned  in  the  last 
article,  are  the  same  as  to  all  rights,  duties,  and  responsibilities,  as  they 
would  have  been  had  the  appointment  been  made  after  the  death  of  the 
convict ;  but  they  are  revoked  by  his  pardon  or  discharge,  except  in 
cases  where  his  sentence  incapacitates  him  from  exercising  those  trusts. 

Art.  290.  Those  who  would  have  been  the  heirs  of  a  convict,  sen- 
tenced to  imprisonment  for  a  term,  cannot  take  the  estate  out  of  the 
hands  of  the  curator  ;  but  if  he  have  relations  in  the  ascending  or 
descending  line,  whom  he  was  bound  by  law  to  support,  the  curator 
shall,  out  of  the  estate,  provide  for  their  sustenance. 

Art.  291.  All  property  given,  or  in  any  manner  whatever  accruing 
to  a  convict  in  the  Penitentiary,  shall  vest  in  his  curator,  if  he  be  sen- 
tenced for  a  term  of  years,  to  be  disposed  of  in  like  manner  with  his 
other  property ;  or  if  he  be  sentenced  for  life,  shall  vest  in  his  heirs. 


CHAPTER  II. 

Of  the  disposition  of  the  property  of  convicts  sentenced  to  imprison- 
ment for  life. 

Art.  292.  The  same  disposition  shall  be  made  of  the  estate  of  a  person 
sentenced  to  imprisonment  for  life,  as  if  he  had  died  on  the  day  sentence 
was  pronounced  ;  and  any  last  will  and  testament  or  codicil  he  may 
have  made  prior  to  that  time,  shall  take  effect  in  the  same  manner  as  if 
he  had  died  on  that  day. 

Art.  293.  But  no  disposition  of  any  estate,  either  by  will  or  other- 
wise, after  the  arrest  for  crime,  of  which  the  prisoner  was  convicted, 
in  the  case  of  any  crime  whether  the  sentence  is  for  life  or  otherwise, 
shall  be  valid  against  the  claim  of  the  person  entitled  to  a  suit  for  the 
private  injury  committed  by  the  crime,  unless  such  disposition  was 
made  for  a  valuable  and  equivalent  consideration  to  a  person  ignorant 
of  the  arrest. 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  727 


BOOK  III. 


OF  THE  HOUSE  OF  REFUGE  AND  INDUSTRY. 


TITLE  I. 


OF  THE  DESIGN  OF  THIS  ESTABLISHMENT. 

Art.  294.  The  object  of  this  establishment  is  twofold  :  the  first,  to 
afford  the  means  of  voluntary  employment  to  those  who  are  able  and 
willing  to  labour,  and  gratuitous  support  to  those  who  are  not ;  the 
second  object  is,  to  coerce  those  who,  although  capable  of  supporting 
themselves,  prefer  a  life  of  idleness,  vice,  and  mendicity,  to  one  of 
honest  labour. 

Art.  295.  As  a  House  of  Refuge,  it  is  intended  to  afford  to  the  dis- 
charged convict  the  means  of  support  by  voluntary  labour,  until,  by 
degrees,  he  may  regain  the  confidence  of  society  ;  to  prevent  those 
offences  of  which  poverty  and  want  of  employment  are  the  real  or  pre- 
tended cause  ;  and  to  relieve  private  charity  from  the  unequal  burthen 
of  supporting  the  mendicant  poor. 

Art.  296.  As  a  House  of  Industry,  the  establishment  is  intended  to 
be  a  place  of  coercion  and  restraint  for  vagrants  and  able-bodied  beg- 
gars ;  for  the  first,  because  their  mode  of  life  raises  a  just  presumption 
that  it  is  sustained  by  illegal  depredations  on  a  society  to  which  they 
do  not  properly  belong ;  for  the  second,  because,  by  false  pretences 
of  inability,  they  impose  on  the  charity  of  the  public  ;  and  for  both 
as  a  measure  of  preventive  justice,  because  their  voluntary  idleness, 
unless  corrected,  will  inevitably  conduct  them  to  vice,  and  crimes, 
and  punishment. 


TITLE  II. 


OF  THE  DIFFERENT  DEPARTMENTS  OF  THE  HOUSE  OF  REFUGE  AND  INDUSTRY, 
AND  OF  THE  DESCRIPTION  OF  PERSONS  ADMITTED  TO,  AND  CONFINED  IN 
EACH. 

Art.  297.  The  House  of  Refuge  and  Industry  shall  consist  of  two 
departments  :   the  one  for  voluntary,  the  other  for  forced   labour  j 


728  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

both  shall  be  under  the  direction  of  the  same  warden  ;  and  the  one 
shall  be  called  the  House  of  Refuge,  and  the  other  the  House  of 
Industry. 

Art.  298.  In  the  House  of  Refuge  shall  be  admitted  all  such  dis- 
charged convicts  as  may  be  desirous  of  gaining  a  subsistence  by  labour; 
all  public  mendicants  who  allege  a  want  of  employment  as  the  reason 
for  asking  public  charity,  or  who,  from  age,  infirmity,  and  poverty, 
are  incapable,  in  part  or  in  the  whole,  to  support  themselves,  and  have 
no  relations  who,  by  law,  are  bound  to  support  them. 

Art.  299.  To  the  House  of  Industry  shall  be  committed  all  vagrants 
above  the  age  of  eighteen,  and  all  able-bodied  beggars,  above  that  age, 
who  refuse  to  labour  in  the  House  of  Refuge,  or  elsewhere,  when 
employment  is  offered  to  them. 

Art.  300.  In  each  department  the  women  shall  be  kept  separate 
from  the  men,  and  they  shall  be  under  the  superintendence  of  a 
matron. 

Art.  301.  The  building  shall  be  so  constructed  as  to  separate  the 
two  departments,  and  shall  contain  separate  sleeping  cells  for  each  of 
the  persons  confined  in  the  House  of  Industry,  and  for  each  of  the 
discharged  convicts  in  the  House  of  Refuge.  The  paupers  shall  be 
disposed  of  in  comfortable  apartments,  in  the  manner  that  the  warden 
(subject  to  the  direction  of  the  inspectors)  shall  direct. 


TITLE  III. 


OF   THE   OFFICERS   OF   THE    HOUSE   OF   REFUGE   AND   INDUSTRY,  AND   OF   THEIR 

DUTIES. 

Art.  302.  This  establishment  shall  be  under  the  direction  of  the 
board  of  inspectors,  in  this  Code  before  provided  for ;  who  shall,  in 
relation  to  this,  have  the  same  powers  and  be  subject  to  the  same  du- 
ties that  are  before  provided  in  relation  to  the  other  places  of  confine- 
ment. 

Art.  303.  The  warden  shall  be  appointed  by  the  governor,  and  the 
warden  shall  appoint  so  many  assistants  as  the  inspectors  shall  deem 
necessary. 

Art.  304.  The  matron  shall  also  be  appointed  by  the  governor, 
and  shall  name  such  number  of  female  assistants  as  the  inspectors  shall 
direct. 

Art.  305.  The  physician  and  chaplains  shall  also  attend  in  their 
professional  capacities  on  the  persons  admitted  or  detained  in  the  House 
of  Refuge  and  Industry. 

Art.  306.  The  agent  of  the  inspectors  shall  also  be  their  agent  for 
the  sales  and  purchases  of  this  institution. 

Art.  307.  The  accounts  shall  be  kept  by  a  clerk  to  be  named  by  the 
inspectors. 

Art.  308.  All  the  above  named  officers  shall  perform  the  same 
duties  and  have  the  same  powers,  with  respect  to  the  House  of  Refuge 
and  Industry,  and  to  the  persons  received  or  committed  therein,  as  are 
required  of  and  are  given  to  them  respectively,  with  respect  to  the 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  729 

Penitentiary  and  the  persons  confined  therein,  except  so  far  as  the 
same  are  modified  by  this  title. 


TITLE  IV. 


OF  THE  ADMISSION  INTO  THE    HOUSE  OF  REFUGE,  AND  OF  THE  EMPLOYMENT  OF 
THE  PERSONS  ADMITTED. 

Art.  309.  The  House  of  Refuge  and  Industry  shall  be  erected  as 
near  as  conveniently  may  be  to  the  city  of  New  Orleans,  not  more 
than  one  league  distant  from  the  City-Hall  of  the  said  city.  Annexed  to 
it  shall  be  a  garden  of  at  least  three  superficial  acres.  The  building 
shall  be  made  on  a  plan  to  be  approved  by  the  governor,  and  sufficient 
in  all  respects  to  carry  into  effect  all  the  provisions  of  this  title. 

Art.  310.  Discharged  convicts  shall  be  admitted  on  their  own  appli- 
cation to  the  warden,  and  on  their  agreeing  to  observe  and  be  bound 
by  the  rules  of  the  said  house,  and  the  provisions  of  this  title,  of 
which,  so  far  as  respects  their  conduct  and  obligations,  an  abstract 
shall  be  read  to  them,  and  which  they  shall  sign. 

Art.  311.  Able-bodied  paupers,  willing  to  labour  but  unable  to  find 
employment,  shall,  in  like  manner,  be  admitted  on  their  own  applica- 
tion, and  on  their  signing  an  agreement  to  observe  the  rules  of  this 
house  and  the  provisions  of  this  title  which  respects  them. 

Art.  312.  All  paupers,  unable  to  provide  for  their  own  subsistence, 
shall  be  admitted  to  the  House  of  Refuge  on  the  order  of  the  jury  of 
police  of  the  parish  to  which  they  belong,  or  of  the  city  council,  if 
they  belong  to  the  city  of  New  Orleans. 

Art.  313.  The  inspectors  shall  provide  the  implements,  materials, 
and  other  means  of  giving  employment  to  all  the  persons  admitted 
into  the  House  of  Refuge,  adapted  to  their  strength,  age,  sex,  and 
skill  respectively,  except  such  as  shall,  on  examination  by  the  physi- 
cian, be  declared  incapable  of  doing  any  thing  towards  their  support. 

Art.  314.  No  person  who  shall  be  admitted  into  the  House  of 
Refuge  shall  leave  the  same,  without  permission  of  the  warden,  or 
without  giving  at  least  one  month's  notice  of  an  intention  to  leave  the 
same  ;  and  any  person  absenting  himself  contrary  to  this  rule,  may 
be  arrested  on  a  warrant  to  be  issued  by  the  warden  and  one  of  the 
inspectors,  and  confined  in  a  solitary  cell  for  a  term  not  exceeding 
three  days. 

Art.  315.  Any  person  who  shall  leave  the  House  of  Refuge,  either 
by  permission  of  the  warden  or  otherwise,  and  shall  be  found  soliciting 
charity  as  a  PUBLIC  BEGGAR,  may  be  arrested,  and  by  the  warrant  of 
the  parish  judge  and  two  magistrates  of  the  parish,  where  such  mendi- 
cant may  be  found,  shall  be  committed  to  the  House  of  Industry  as  a 
vagrant. 

Art.  316.  Any  person  admitted  into  the  House  of  Refuge,  who  shall 
refuse  or  neglect  to  perform  the  labour  assigned  to  him,  may,  if  the 
inspectors  shall  think  that  the  task  assigned  is  not  greater  or  more  diffi- 
cult than  the  strength  or  skill  of  the  person  can  perform,  be  committed 
4  R 


730  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 

to  the  House  of  Industry  for  such  time,  not  exceeding  ten  days  for 
each  offence,  as  the  inspectors  shall  direct. 


TITLE  V. 


OF  THE  POLICE  OF  THE  HOUSE  OF  REFUGE. 

Art.  317.  The  inspectors  may  make  rules  for  the  preservation  of 
order  and  industry  in  the  House,  and  may  punish  breaches  thereof  in 
the  manner  such  rules  may  direct,  either  by  imprisonment  in  a  solitary 
cell,  or  by  commitment  to  the  House  of  Industry  ;  provided  that  such 
imprisonment  shall  not  exceed  three  days,  or  such  commitment  be  for 
a  longer  term  than  ten  days,  for  any  offence  against  such  rules. 

Art.  318.  The  two  sexes  shall  be  kept  separate  in  the  House  of 
Refuge,  in  two  distinct  apartments;  but  boys,  under  seven  years  of  age, 
may  be  kept  with  their  mothers,  or,  if  they  have  none,  by  proper 
nurses,  under  the  care  of  the  matron. 

Art.  319.  Children  of  paupers,  between  the  ages  of  seven  and  eigh- 
teen, may  be  sent  to  the  School  of  Reform  by  the  inspectors,  at  their 
discretion,  when  the  friends  or  relatives  of  such  children  do  not  pro- 
vide for  their  education  and  support. 

Art.  320.  The  matron  shall  apportion  the  tasks  of  the  females  in  both 
departments  of  the  House  of  Refuge  and  Industry,  and  shall  superintend 
their  labour,  and  report  all  delinquencies  to  the  warden  or  inspectors, 
to  be  furnished  in  the  same  manner  as  those  of  the  males. 

Art.  321.  The  warden  and  matron  respectively  shall  appoint,  from 
among  the  persons  admitted  into  the  House  of  Refuge,  a  male  and 
female  teacher,  who  shall  give  lessons  in  reading,  writing,  and  arith- 
metic, to  such  of  the  persons  admitted  or  confined  as  may  be  ignorant 
of  these  branches  of  learning,  at  such  hours  as  the  warden  shall  direct. 

Art.  322.  No  wine,  or  spirituous  or  intoxicating  liquors  of  any  kind, 
shall,  under  any  pretence,  be  used  by  those  admitted  into  the  House  of 
Refuge  or  of  Industry,  unless  by  prescription  of  the  physician. 

Art.  323.  Permission  may  be  given  to  such  of  the  persons  as  are 
most  orderly  and  industrious  to  see  their  friends  out  of  the  House  on 
Sundays,  or  to  attend  divine  service  in  the  city  of  New  Orleans. 


TITLE  VI. 


OF  THE  HOUSE  OF  INDUSTRY,  ITS   POLICE,  AND  THE    EMPLOYMENT  OF  THE  PER- 
SONS CONFINED  THEREIN. 

Art.  324.  The  time  and  place  of  labour,  and  the  intervals  given  for 
other  purposes,  shall  be  the  same  in  the  House  of  Industry  as  that 
directed  by  this  Code  for  the  convicts  in  the  Penitentiary. 

Art.  325.  The  prison  ration  for  those  who  labour  and  for  those  who 
are  idle  shall  be  the  same  as  in  the  Penitentiary.  The  same  privations, 


CODE  OF  REFORM  AND  PRISON  DISCIPLINE.  731 

punishments,  and  restraints,  may  be  inflicted  for  idleness,  or  the  breach 
of  any  of  the  rules  established  by  the  inspectors  or  by  this  chapter. 

Art.  326.  The  same  accounts  shall  be  kept  with  persons  confined, 
and  the  same  allowance  for  excess  of  labour  above  the  charges,  shall  be 
made. 

Art.  327.  Whatever  is  directed  for  the  reception  of  convicts  in  the 
Penitentiary  shall  be  observed  when  any  one,  committed  to  the  House 
of  Industry,  shall  be  received,  except  the  prison  uniform,  which  shall 
not  be  given  unless  the  clothing  of  the  person  convicted  is  not  sufficient 
for  health  or  cleanliness. 

Art.  328.  The  labour  of  the  persons  confined  in  the  Rouse  of  Industry 
may  be  contracted  for  in  the  same  manner  as  that  of  the  convicts  in  the 
Penitentiary ;  or  when  not  contracted  for,  it  is  to  be  carried  to  the 
account  of  the  establishment ;  and  the  articles  manufactured  are  to  be 
disposed  of  in  the  same  way  as  is  directed  for  the  Penitentiary. 


TITLE  VII. 


OP  THE  PECUNIARY  CONCERNS  OF  THE  HOUSE  OF  REFUGE  AND  INDUSTRY. 

Art.  329.  The  accounts  of  the  two  departments,  the  House  of  Refuge 
and  the  House  of  Industry,  shall  be  kept  in  separate  sets  of  books  by 
the  clerk,  under  the  inspection  of  the  warden  and  the  inspectors. 

Art.  330.  In  the  books  of  the  House  of  Refuge  all  the  expenses  of 
the  paupers,  sent  by  any  parish  or  city,  shall  be  charged  to  such  parish 
or  city  respectively,  and  they  shall  be  credited  with  the  amount  of  the 
earnings  of  such  paupers. 

Art.  331.  In  the  expenses,  mentioned  in  the  preceding  article,  shall 
be  included,  not  only  the  food,  clothing,  medicine,  and  other  articles 
provided  for  such  paupers,  but  a  just  proportion  of  the  salaries  of  the 
warden  and  other  officers  and  attendants  of  the  House  of  Refuge  and 
Industry,  calculated  on  the  average  of  persons  in  the  said  house. 

Art.  332.  One-fourth  part  of  the  salaries  of  the  inspectors,  of  the 
chaplains,  and  physician,  shall  also,  in  such  account,  be  considered  as 
chargeable  to  the  House  of  Refuge  and  Industry,  and  a  due  proportion 
of  that  fourth  (divided  as  is  above  directed  by  the  average  number  of 
the  persons  in  the  said  house)  shall  be  also  included  in  the  expenses 
charged  to  the  parishes  as  aforesaid. 

Art.  333.  Whatever  sum  is  found  due  on  such  account,  if  not  paid 
on  demand  by  the  city  or  parish  from  which  it  is  due,  shall  be  added 
to  the  quota  of  the  state  taxes,  payable  by  such  city  or  parish,  and  be 
collected  and  paid  into  the  public  treasury  in  like  manner  with  the  rest 
of  the  state  taxes. 

Art.  334.  All  the  expenses  of  the  other  persons  admitted  or  confined 
in  the  said  house,  shall  be  paid  by  the  state,  without  any  counter  charge. 

Art.  335.  A  detailed  account  of  all  the  expenditures  and  receipts  of 
the  said  house  shall  be  laid  before  the  legislature,  by  the  inspectors,  on 
the  first  day  of  every  session. 

Art.  336.  The  salary  of  the  warden  shall  be  dollars  per 

annum,  and  of  the  matron  dollars,  and  each  of  the  assistants 

shall  be  paid  a  day. 


732  CODE  OF  REFORM  AND  PRISON  DISCIPLINE. 


GENERAL  PROVISIONS. 


Art.  337.  If  any  one  shall,  for  hire,  reward,  or  emolument  of  any 
kind  whatever,  or  the  promise  of  any,  solicit  the  pardon  of  any  one 
convicted  of  any  offence,  or  procure  any  other  to  sign  a  petition  for 
such  pardon,  or  to  apply  for  the  same,  he  shall  be  fined  five  hundred 
dollars,  and  if  he  be  a  counsellor  or  attorney,  he  shall  be  suspended 
from  practising  as  such  in  any  court  in  the  state  for  one  year. 

Art.  338.  The  inspectors,  chaplains,  teachers,  physicians,  wardens, 
matrons,  assistants,  and  under-keepers,  appointed  by  virtue  of  this  Code, 
shall,  before  they  enter  on  the  performance  of  their  respective  duties, 
take  an  oath  faithfully  to  perform  the  same. 


A   BOOK   OF   DEFINITIONS. 


TITLE  I. 


GENERAL  PROVISIONS. 

Art.  1.  These  definitions  are  intended  to  show  the  sense  in  which  the  words 
defined  are  employed  in  the  system  of  Penal  Law,  not  to  denote  or  fix  thefr  general 
signification  in  the  language. 

Art.  2.  The  words  printed  in  small  capitals  in  the  body  of  this  system,  are 
alphabetically  arranged  in  this  Book,  with  the  definition  annexed. 

Art.  3.  Generally  the  definitions  that  are  incorporated  in  the  other  parts  of  the 
work  are  not  repeated  in  this  Book  ;  but  this  rule  is  departed  from  when  the  gene- 
ral use  of  the  term,  in  other  parts  of  the  System  than  that  in  which  the  definition  is 
contained,  renders  a  reference  to  the  explanation  necessary. 

Art.  4.  Corollaries,  illustrations,  and  developments,  are  used  in  several  instances 
to  fix  the  attention  more  strongly  to  particular  parts  of  the  definition :  but  the 
omission  to  employ  them,  in  other  cases,  is  not  to  be  considered  as  giving  any 
latitude  for  the  construction  of  any  word  in  a  definition  beyond  the  plain  import  of 
its  meaning  in  connexion  with  the  context. 


TITLE  II. 


DEFINITIONS. 

ACCIDENT,  in  this  System,  means  an  event  happening  without  the  concur- 
rence of  the  will  of  the  person  by  whose  agency  it  was  caused.  It  differs  from 
MISTAKE,  because  the  latter  always  supposes  the  operation  of  the  human  will  in 
producing  the  event,  although  that  will  is  caused  by  erroneous  impressions  on  the 
mind. — See  MISTAKE. 

ACT — when  applied  to  a  written  instrument,  is  a  term  used  to  show  the  con- 
nexion between  the  instrument  and  the  party  who  has  given  it  validity  by  his  sig- 
nature or  by  his  legal  assent :  when  thus  perfected,  the  instrument  becomes  the 
ACT  of  the  parties  who  have  signed  or  assented  to  it  in  a  form  required  by  law. 

ADVANTAGE,  applied  in  different  parts  of  the  system  to  that  which  is  to  be 
gained  or  lost,  means  whatever,  in  the  estimation  of  mankind,  causes  pleasure  by 
its  possession  or  enjoyment,  or  uneasiness  by  its  loss  or  cessation. 

AFFIDAVIT — a  written  declaration,  sanctioned  by  the  oath  of  the  declarant 
administered  by  a  person  or  court  duly  authorized  for  that  purpose.  The  adminis- 
tration of  the  oath  must  be  duly  certified  by  the  official  SIGNATURE  of  the  person, 
or  the  clerk  of  the  court,  before  whom  it  was  taken ;  and  the  declaration  must  be 
SIGNED  by  the  declarant ;  or  it  must  be  certified  by  the  person  administering  the 
oath,  that  the  declarant  cannot  sign. 


736  BOOK  OF  DEFINITIONS. 

AFFINITY — a  connexion  formed  by  marriage  which  places  the  husband  in  the 
same  degree  of  nominal  propinquity  to  the  relations  of  the  wife  as  that  in  which 
she  herself  stands  towards  them,  and  gives  to  the  wife  the  same  reciprocal  con- 
nexion with  the  relations  of  the  husband.  It  is  used  in  contradistinction  to  CON- 
SANGUINITY, which  is  the  relationship  that  exists  between  several  persons  who 
derive  their  descent  in  the  same  or  different  degrees  of  propinquity  from  an  ances- 
tor common  to  all. 

AFFIRMATION  and  OATH.  An  affirmation  is  a  solemn  declaration,  made 
before  a  person  or  court  authorized  to  receive  it,  attesting  the  truth  of  a  statement 
already  made  or  about  to  be  made  by  the  affirmant;  or  the  truth  or  sincerity  of  a 
promise  made  by  him.  An  oath  is  a  similar  declaration,  accompanied  by  a  religious 
invocation  to  the  Supreme  Being  to  bear  witness  to  the  truth  of  the  declaration  or 
the  sincerity  of  the  promise,  and  by  a  renunciation  of  the  blessing  of  God  and  the 
respect  of  man  if  the  engagement  should  be  violated.  Vide  the  Chapter  of  the 
Code  of  Procedure,  "  Of  Oaths  and  Affirmatiosn."  The  term  "  oath,"  whenever 
used  in  this  System,  as  to  its  effects  and  consequences  and  all  penalties  attending 
its  breach  or  falsity,  includes  affirmations,  unless  the  contrary  appears  from  the 
context. 

AMICABLE  COMPOUNDED.    An  arbitrator  with  extensive  equitable  powers. 

TO  APPROPRIATE,  in  relation  to  property,  is  to  possess,  and  to  make  such 

use  or  disposition  of  it,  as  none  but  the  owner,  or  some  one  legally  authorized  by 

him,  could  do  ;  and,  with  respect  to  rights,  to  do  such  acts  in  relation  to  them  as 

none  but  the  person  entitled  to  them,  or  his  representatives,  could  lawfully  do. 

Appropriations  are  legal  or  fraudulent.  No  appropriations  are  fraudulent  but 
such  as  come  within  the  definition  of  fraud  in  this  book. 

Corollaries. — I.  If  the  property  he  destroyed  but  not  possessed,  or  if  the  pos- 
session be  for  the  purpose  of  destruction,  or  be  such  a  possession  only,  as  is  neces- 
sary for  effecting  the  destruction,  it  is  not  an  appropriation. 

II.  If  the  property  be  taken  possession  of  and  transferred,  although  it  be  after- 
wards destroyed,  it  is  an  appropriation. 

ARBITRATOR — any  one  appointed  by  the  parties  in  any  litigated  question, 
either  of  law  or  fact,  to  decide  it  between  them.  In  this  system  it  is  used  to  in- 
clude REFEREES,  UMPIRES,  and  AMICABLE  coMPOUNDERS,  whether  they  are  named 
by  the  court,  in  cases  where  they  are  authorized  to  do  so,  or  by  the  parties. 

ATTEMPT.  An  attempt  to  commit  an  offence,  in  this  system,  means  an  en- 
deavour to  accomplish  it,  which  has  failed  from  some  other  cause  than  the  voluntary 
relinquishment  of  the  design. 

BAILABLE  OF  RIGHT.  Those  offences,  on  a  charge  for  which  the  magis- 
trate must  admit  to  bail,  if  good  security  be  offered,  are  bailable  of  right.  The 
constitution  provides,  that  bail  must  be  taken  for  all  offences,  except  those  which 
were  punished  capitally  at  the  time  of  its  adoption :  these  were  murder,  rape,  ex- 
citing insurrection  among  the  slaves,  and  stabbing,  or  shooting,  or  poisoning  with 
intent  to  murder.  All  other  offences,  therefore,  are  bailable  of  right.  The  offences, 
above  enumerated,  are  also  bailable,  when  the  proof  is  not  evident  nor  the  presump- 
tion great. 

BREACH  OF  THE  PEACE— any  offence  against  public  tranquillity,  or  against 
person  or  property,  when  accompanied  by  violence. 

BRIBE.  The  gift  or  promise  which  is  accepted  ;  of  some  ADVANTAGE,  as  the 
inducement  for  an  illegal  act  or  omission ;  or  of  some  illegal  EMOLUMENT,  as 
a  consideration,  for  preferring  one  person  to  another  in  the  performance  of  a  legal 
act. 

TO  BRIBE — to  make  such  gift  or  promise  which  is  received.  If  it  be  not 
received,  it  is  an  OFFER  TO  BRIBE. 

TO  RECEIVE  A  BRIBE,  is  to  accept  the  gift  or  promise,  and  either  expressly 
or  impliedly  consent  to  do  the  act,  or  be  guilty  of  the  omission  required.  Whatever 
would  be  proof  of  consent  in  cases  of  contract,  according  to  the  rules  of  evidence, 
would  show  an  acceptance  in  this  case. 

Corollaries  and  Illustrations. — I.  The  gift  or  the  promise  required  by  the  defini- 
tion need  not  be  direct :  although  the  gift  be  clothed  in  the  form  of  a  sale  for  an 
inadequate  price,  or  of  the  payment  of  a  debt ;  or  the  promise  be  made  colourably 
for  some  other  consideration ;  or  a  wager,  or  any  other  device,  be  used  to  cover 
the  true  intent  of  the  parties,  it  is  a  bribe. 

II.  The  gift  or  the  promise  must  be  the  inducement  for  the  act  or  omission  ;  it 
must,  therefore,  precede  or  accompany  such  act  or  omission.  If  the  act  be  first 
performed,  uninfluenced  by  any  such  promise,  it  is  not  bribery. 


BOOK  OF  DEFINITIONS.  737 

III.  When  the  act  or  omission  is  illegal,  the  promise  or  gift  of  any  ADVANTAGE, 
as  the  consideration,  is  bribery.     If  a  magistrate  should  discharge,  without  bail,  a 
person  legally  accused  of  a  crime,  on  the  promise  of  that  person's  influence  with 
the  governor  for  an  appointment,  this  would  be  bribery ;  because,  although  the  in- 
ducement, that  is  to  say,  the  influence  with  the  governor,  is  only  an  ADVANTAGE, 
not  an  EMOLUMENT,  yet  the  act,  that  is  to  say,  the  discharge  without  bail,  being 
illegal,  it  comes  within  the  definition. 

IV.  But  when  the  act  is  legal,  but  the  impropriety  consists  in  the  undue  prefer- 
ence given  to  the  person  offering  the  inducement,  that  inducement,  to  constitute  the 
offence,  must  not  only  be  an  advantage,  but  an  emolument.     If  an  officer  of  justice 
were  to  promise  a  magistrate  to  recommend  his  friend  for  an  employment,  as  an 
inducement  for  the  magistrate  to  employ  him  in  preference  to  any  other  in  the 
business  of  his  office,  this  would  not  be  bribery  ;  although  it  would,  if  the  inducement 
had  been  a  sum  of  money  or  any  other  emolument. 

V.  The  emolument,  when  that  is  required  to  constitute  the  offence,  must  l?e 
illegal,  that  is  to  say,  either  not  allowed  or  more  than  is  allowed  by  law.     If  two 
persons  should  apply  to  a  notary,  each  to  have  an  act  of  sale  drawn,  and  he  should 
give  the  preference  to  the  one  who  paid  him  double  fees,  this  would  come  within 
the  definition  ;  but  if  he  took  no  more  than  the  tariff  allows,  the  preference  would 
be  no  offence. 

VI.  No  acts  of  bribery,  or  offer  to  bribe,  are  punishable  as  such,  but  those  which 
are  designated  by  express  law. 

VII..  Whenever  by  the  Penal  Code  bribery,  or  an  offer  to  bribe,  is  made  pun- 
ishable, in  relation  to  officers  of  a  particular  description,  or  to  persons  exercising 
certain  duties,  powers,  or  privileges,  it  is  intended  to  extend  to  all  official  aefs  and 
omissions  of  such  officers,  and  to  all  acts  or  omissions  of  such  other  persons  as  re- 
late to  their  duties,  privileges,  or  powers ;  but  not  to  include  any  other. 

BUILDING — any  thing  erected  by  art  and  fixed  upon  or  in  the  soil,  composed  of 
different  pieces,  connected  together,  and  designed  for  permanent  use  in  the  position 
in  which  it  is  so  fixed. 

Corollaries. — I.  A  single  piece  of  timber,  although  fixed  in  the  ground,  is  not 
a  building. 

II.  A  fence  or  enclosure  is  a  building. 

III.  A  heap  of  stones,  although  some  of  them  maybe  fixed  on  the  earth,  is  not 
a  building. 

IV.  Every  building  comes  under  the  description  of  real  estate. 
COLOUR.     Doing  an  act  under  colour  of  an  office,  or  other  legal  power,  means 

the  doing  it  under  the  false  pretence  that  it  is  authorized  by  the  duties  of  such  office, 
or  by  the  due  exercise  of  such  legal  powers. 

CONDITION  of  a  Person — a  situation  in  civil  society  which  creates  certain 
relations  between  the  individual,  to  whom  it  is  applied,  and  one  or  more  others, 
from  which  mutual  rights  and  obligations  arise.  Thus  the  situation  arising  from 
marriage  gives  rise  to  the  CONDITIONS  of  husband  and  wife  ;  that  from  paternity 
to  the  CONDITIONS  of  father  and  child. 

COROLLARY,  in  this  system,  is  used  not  so  much  to  designate  the  just  conse- 
quence that,  according  to  strict  reasoning,  ought  to  be  drawn  from  any  proposition, 
as  the  consequence  which  is  established  by  law  as  resulting  from  the  definition  or 
proposition  to  which  it  refers.  Those  who  are  to  execute  or  interpret  the  law, 
therefore,  are  forbidden  to  modify  or  reject  any  such  consequence  under  the  pre- 
tence that  it  is  not  a  just  deduction. 

CORPORATION,  is  an  incorporeal  being,  created,  and  capable  of  acting  only 
in  the  manner  prescribed  by  law.  It  is  composed  of  one  or  more  persons  having  a 
common  name  and  uninterrupted  succession.  It  may  hold  property,  and  for  certain 
purposes  specified  by  law  is  considered  as  an  individual. 

Corollaries. — I.  As  a  corporation,  by  this  definition,  is  capable  of  acting  only  in 
the  manner  prescribed  by  law,  no  act  done  in  any  other  manner  or  form,  can  be  the 
act  of  the  corporation.  It  cannot,  therefore,  commit  an  offence.  All  such  acts, 
although  done  under  the  colour  of  being  corporate  acts,  are  those  of  the  individual 
members  who  perform  them,  and  they  alone  are  criminally  liable. 

II.  Acts  w4iich  are  offences  against  the  property  and  rights  of  individuals,  are 
also  offences  when  committed  against  the  property  of  corporations,  and  such  rights 
as  are  vested  in  them  by  law. 

III.  Corporations  are  of  two  kinds  :  Public,  also  called  Political  Corporations, 
and  Private  Corporations.     Fustic  CORPORATIONS  are  those  to  which  are  confided 

4  S 


738  BOOK  OF  DEFINITIONS. 

certain,  police  powers  in  a  designated  portion  of  the  state.  PRIVATE  CORPORATIONS 
are  all  such  as  are  not  public. 

CORRUPTLY.  This  adverb  is  applied  to  the  doing  of  acts  with  the  intent  of 
gaining  some  ADVANTAGE  inconsistent  with  official  duty  or  the  rights  of  others. 

Corollaries. — I.  Corruption  includes  bribery,  but  is  more  comprehensive.  An 
act  may  be  corruptly  done  though  the  advantage  to  be  derived  from  it  be  not  offered 
by  another. 

II.  It  is  not  corruption  to  do  an  official  act  from  an  expectation  of  ADVANTAGE, 
if  the  act  be  not  contrary  to  official  duty,  or  floes  not  injure  the  rights  of  another. 

III.  The    corruption    is    not  measured    by    the    nature   or  amount   of   the 

ADVANTAGE. 

COUNTERFEIT— to  make  something  false  in  the  semblance  of  that  which 
is  true.  Whenever  this  word  is  used,  in  this  system,  it  implies  fraudulent  intent. 

COURT— COURT  OF  JUSTICE.  These  terms,  in  this  system,  are  synony- 
mous. A  court  is  an  incorporeal  political  being,  which  requires  for  its  existence, 
the  presence  of  the  judge  and  clerk  at  the  time  during  which,  and  at  the  place 
where,  it  is  by  law  authorized  to  be  held ;  and  the  performance  of  some  public  act, 
indicative  of  the  design  to  perform  the  functions  of  a  court. 

Corollaries. — I.  There  can  be  no  court  without  a  clerk  or  some  one  authorized 
to  perform  the  duties  of  a  clerk. 

II.  Executive  officers  are  not  essential  to  the  existence  of  a  court. 

III.  The  judge  is  not  the  court. 

IV.  The  court  cannot  exist  before  the  time  at  which,  by  law,  it  is  authorized  to 
hold  its  sessions  ;  nor  after  the  time  to  which  its  sitting  is  limited. 

V.  All  acts  done  by  the  persons  composing  the  court,  importing  to  be  acts 
of  the  court,  at  any  other  place  than  that  authorized  by  law,  are  not  the  acts  of  a 
court. 

VI.  A  justice  of  the  peace,  or  any  other  magistrate  authorized  to  perform  judi- 
cial duties,  without  a  clerk  to  record  his  proceedings,  does  not  constitute  a  court ; 
but  courts  may  order  certain  executive  acts  to  be  performed  at  other  times  and 
places,  such  as  the  issuing  of  writs  and  filing  of  papers. 

CRIME,  is  an  offence  the  punishment  of  which,  in  the  whole  or  in  part,  may  be 
the  forfeiture  of  any  civil  or  political  right,  or  hard  labour,  or  for  which  hard  labour 
is  an  alternative,  to  be  inflicted  at  the  discretion  of  the  court. 

DAY,  given  as  the  period  of  a  notice,  prescribed  as  a  necessary  interval  between 
two  acts  or  events,  excludes  the  day  of  the  notice  and  the  day  the  act  is  to  be  per- 
formed ;  or  of  the  first  and  second  act  or  event ;  so  that  the  full  number  of  days  pre- 
scribed shall  intervene,  unless  there  be  a  contrary  provision  in  the  law. 

DAY,  used  as  a  period  of  time,  means  the  period  of  twenty-four  hours,  beginning 
at  the  expiration  of  the  twelfth  hour  at  night. 

DAY,  or  DAY-TIME,  used  in  contradistinction  to  night,  means  the  period  be- 
ginning at  half  an  hour  before  the  rising  of  the  sun,  and  ending  half  an  hour  after 
its  setting. 

DEADLY  WEAPON — any  instrument  which,  when  offensively  used  against  the 
person,  will  probably  produce  death. 

DEMUR,  is  to  admit  the  truth  of  a  fact  stated,  but  to  deny  the  legal  consequence 
for  the  establishment  of  which  it  was  alleged.  The  only  case  in  which  a  formal 
demurrer  is  admitted,  in  this  system,  is  that  of  a  demurrer  to  a  challenge  to  the 
panel  of  jurors. 

DESIGNATED  PERSON,  is  a  term  used  to  express  one  who  is  either  known 
by  name,  or  by  person,  or  station,  or  office,  or  dwelling-place,  or  in  any  other  way 
that  may  designate  him  to  be  the  person  referred  to. 

DISCRETION — the  exercise  of  sound  judgment,  directed  by  what  may  be  sup- 
posed would  have  been  the  will  of  the  legislature,  applied  to  the  case  in  which 
the  discretion  is  to  be  used,  had  the  circumstances  of  that  case  been  legislated 
upon :  for  a  development  of  this  definition — See  the  Code  of  Procedure,  chapter 
"  Of  the  Judgment." 

DISCUSSION  of  Property,  means  the  using  the  means  prescribed  by  law  for 
rendering  it  available  to  the  payment  of  a  debt. 

DOMESTIC  ANIMALS,  means  only  animals  of  that  kind  that  are  usually 
employed  in  hunting,  or  in  husbandry,  or  which  are  raised  for  the  purpose  of  food. 

EMOLUMENT — any  thing  that  forms  an  increase  of  property. 

ESTATE,  is  used  as  synonymous  with  property.     See  PROPERTY. 

EVIDENCE,  is  that  which  brings  the  mind  to  a  just  conviction  of  the  truth  or 
falsehood  of  any  substantive  proposition  which  is  asserted  or  denied. 


BOOK  OF  DEFINITIONS.  739 

Illustrations  and  Developments  of  the  different  Parts  of  this  Definition. — 

I.  A  conviction  produced  by  evidence  which  ought  not,  according  to  the  rules 
of  true  reason,  to  have  that  effect,  is  not  a  just  conviction:  the  law,  therefore,  de- 
clares what  effect  different  species  of  evidence  ought  to  have  in  producing  such 
conviction  ;  and  that  evidence,  in  its  different  degrees,  is  called  LEGAL  EVIDENCE. 

II.  Evidence  being  different  according  to  the  different  degrees  of  effect  which 
it  ought  to  produce ;  those  degrees,  therefore,  receive  different  denominations,  in- 
dicative of  the  operation  they  each  ought  to  have  on  the  mind.     These  denomina- 
tions are — presumptive  evidence,  direct  evidence,  and  conclusive  evidence  ;  all  of 
which  are  hereafter  defined. 

III.  The  word  "  substantive,"  in  the  definition,  is  intended  to  exclude  all  such 
abstract  propositions  as  can  be  demonstrated  to  be  true  or  false  by  the  reasoning 
power,  without  having  recourse  to  the  establishment  of  other  facts.     The  proposi- 
tions intended  by  the  definition  are  either  of  fact  or  of  law.     What  is  evidence  of 
law,  will  be  shown  in  the  Code  of  Evidence.     The  three  kinds  of  evidence  enume- 
rated, apply  only  to  propositions  of  fact. . 

EVIDENCE  (presumptive).  Presumptive  evidence  is  that  which,  by  directly 
establishing  the  existence  of  one  fact,  renders  the  existence  of  another  probable. 

EVIDENCE  (direct).  Direct  evidence  is  that  which,  if  true,  conclusively  estab- 
lishes or  destroys  the  proposition  in  question. 

EVIDENCE  (conclusive).  Conclusive  evidence  is  that  which,  by  law,  is  de- 
clared to  be  such  proof  of  that  which  it  asserts,  as  cannot,  while  it  exists,  be  con- 
tradicted by  other  testimony. 

EXCITE — to  offer  any  persuasion,  or  inducement. 

EXTORT,  is  to  obtain  some  illegal  EMOLUMENT  or  advantage  from  another, 
under  colour  of,  or  as  the  consideration  for,  some  official  act. 

FORCE — VIOLENCE.  These  terms  mean  the  exertion  of  physical  power,  and 
when  unqualified  by  any  thing  in  the  context,  the  idea  of  the  illegal  exercise  of  such 
powers  is  intended  to  be  conveyed. 

Corollaries. — I.  No  words,  whatever  maybe  their  import,  can  constitute  force 
or  violence. 

II.  Gestures,  indicating  an  intent  to  apply  physical  power  to  the  object  intended 
to  be  affected,  when  such  object  is  within  the  reach  of  the  exercise  of  such  power, 
does  amount  to  force  or  violence. 

III.  The  exercise  of  physical  power  amounts  to  force  or  violence,  although  it 
may  be  insufficient  to  carry  the  intent  into  effect. 

IV.  Violence  and  force  are,  in  some  instances,  considered  as  offences  merely 
by  the  intent  with  which  they  are  used — as  in  assault,  and  assault  and  battery. 
Sometimes  they  do  not  amount  to  the  offence  described,  unless  they  are  sufficient 
to  carry  the  intent  into  effect — as  in  the  offence  of  violently  obstructing  the  pro- 
ceedings of  a  court  of  justice ;  in  which  case  the  offence  is  not  complete,  unless 
the  violence  has  produced  the  obstruction. 

FRAUD— TO  DEFRAUD— unlawfully,  designedly,  and  knowingly,  to  appro- 
priate the  property  of  another. 

Illustrations. — I.  Every  appropriation  of  the  right  of  property  of  another,  is  not 
fraud.  It  must  be  unlawful ;  that  is  to  say,  such  an  appropriation  as  is  not  permit- 
ted by  law.  Property  loaned  may,  during  the  time  of  the  loan,  be  appropriated  to 
the  use  of  the  borrower.  This  is  not  fraud,  because  it  is  permitted  by  law. 

II.  The  appropriation  must  be,  not  only  unlawful,  but  it  must  be  made  with  a 
knowledge  that  the  property  belongs  to  another,  and  with  the  design  to  deprive  him 
of  the  sanv?.     It  is  unlawful  to  take  the  property  of  another  ;  but  if  it  be  done  with 
a  design  of  preserving  it  for  the  owners,  or  if  it  be  taken  by  mistake,  it  is  not 
done  designedly  or  knowingly,  and,  therefore,  does  not  come  within  the  definition 
of  fraud. 

III.  Every  species  of  unlawful  appropriation,  enters  into  this  definition  when 
designedly  made  with  a  knowledge  that  the  property  is  another's ;  therefore,  such 
an  appropriation,  intended  either  for  the  use  of  another  or  for  the  benefit  of  the 
offender  himself,  is  comprehended  by  the  term. 

IV.  Fraud,  however  immoral  or  illegal,  is  not,  in  itself,  an  offence.     It  only  be- 
comes such  in  the  cases  specially  provided  by  law. 

HABITUALLY— so  frequently  as  to  show  a  design  of  repeating  the  same  act. 
HOUSEHOLDER— one  who  occupies  a  house,  or  part  of  one,  in  which  he  ha- 
bitually dwells. 

Corollaries. — I.     It  is  not  necessary  that  the  dwelling-place  should  either  be 


740  BOOK  OF  DEFINITIONS. 

owned  or  hired  ;  an  occupant  at  sufferance,  or  in  his  own  wrong,  comes  within  the 
definition. 

II.  By  employing  the  word  "  dwells,"  in  the  definition,  it  is  intended  to  exclude 
a  sojourner  or  guest.     The  occupant  must  be  provided  for  at  his  own  table,  not 
board  at  that  of  another. 

III.  The  dwelling  must  be  so  habitual  as  to  show  an  intent  of  continuance. 
The  quality  of  householder  cannot  be  assumed,  merely  for  the  purpose  of  using  it, 
in  order  to  do  some  act  for  the  performance  of  which  that  character  is  required  by 
law,  with  the  intent  of  relinquishing  it  when  the  purpose  is  attained. 

HOUSE — any  edifice,  which  being  so  huilt  as  to  come  within  the  definition  of 
REAL  PROPERTY,  as  defined,  is  closed  in  on  all  sides,  and  has  the  area,  which  is  en- 
closed by  the  sides,  covered  with  a  roof. 

HOUSE  (dwelling).  A  dwelling  house  is  one  in  which  some  person  habitually 
sleeps  or  eats  his  meals  ;  or  one  that  is  built  and  intended  for  that  purpose ;  al- 
though not  actually  inhabited. 

INDUCEMENT — the  object,  whether  of  advantage  to  be  obtained  or  evil  to  be 
avoided,  which  brings  the  mind  to  determine  on  any  act  or  omission. 

INFANT — a  minor,  who  has  not  yet  attained  the  age  which  usually  gives  physi- 
cal and  mental  power  to  avoid  the  ordinary  dangers,  or  without  aid  to  use  the  ordi- 
nary means  of  sustaining  life  when  they  are  provided  for  him. 

INJURY,  is  used  in  its  most  enlarged  signification,  meaning  whatever  causes 
evil  or  detriment,  or  renders  the  object  of  less  value.  When  it  is  intended  to  be 
u^ed  in  the  restricted  sense  of  an  evil  or  detriment,  caused  contrary  to  law,  it  is 
called  illegal  injury,  or  some  other  qualifying  epithet  is  annexed  to  show  such 
intent. 

INSANITY — a  malady  operating  on  the  perceptive  or  on  the  reasoning  faculties 
of  the  mind,  which  either  prevents  the  person  affected  from  receiving  true  impres- 
sions through  his  senses,  or  from  drawing  just  conclusions  from  what  is  truly  per- 
ceived ;  and  existing  in  such  a  degree  as  to  render  him  incapable  of  performing  the 
usual  duties  or  transacting  the  ordinary  affairs  of  life. 

JUDGE — a  public  officer,  appointed  to  decide  litigated  questions.  This  term, 
with  exceptions  that  are  specially  made,  is  used  to  designate  only  such  officers  as 
preside  in  COURTS,  and  who  are  designated  by  that  title  in  their  appointments. 

Exceptions  and  Illustrations. — I.  Jurors,  although  they  are  judges  of  fact — and 
ARBITRATORS,  although  they  are  private  judges,  chosen  by  the  parties,  and  in 
some  cases  assigned  by  the  court — are,  in  this  system,  not  included  in  the  term, 
unless  specially  named. 

II.  When  used  in  relation  to  a  power  to  be  exercised,  or  a  duty  to  be  performed, 
in  a  court  having  more  than  one  judge,  the  power  or  duty  is  given  to  or  imposed  on 
all  the  judges,  or  so  many  as  are  necessary  for  the  constitution  of  the  court.     When 
the  term  judge  is  used  in  relation  to  a  duty  or  power  to  be  performed  or  exercised 
out  of  court,  it  is  intended  to  impose  the  duty  or  confer  the  power  on  any  one  judge 
where  there  are  several. 

III.  A  justice  of  the  peace  is  included  in  the  term  judge  in  the  first  two  chapters 
of  the  title  of  the  Penal  Code,  "of  Offences  against  the  Judiciary  Powers." 

JUST  REASON — to  fear — to  think — to  believe — to  doubt — such  cause  as  would 
produce  these  effects  by  their  operation  on  the  apprehension  or  mind  of  a  man  of 
ordinary  understanding  in  the  common  occurrences  of  life.  The  definition  does 
not  call  for  the  exertion  of  very  extraordinary  courage,  or  an  unusual  degree  of  in- 
tellect. 

LAW,  as  used  in  this  system.  This  word  signifies  all  those  rules  established 
by  the  people  of  the  state  in  their  constitution,  or  necessarily  governing  them  as  a 
member  of  the  Union,  or  adopted  or  made  by  the  legislature  in  conformity  with  the 
powers  given  by  the  constitution,  and  according  to  the  forms  it  prescribes. 

Corollaries,  Developments,  and  Illustrations. — I.  The  laws  in  force  in  this 
state  are  the  following,  each  having  a  controlling  force  over  the  others  in  the  order 
in  which  they  are  enumerated : 

1.  The  constitution  of  the  United  States,  because  it  was  adopted  by  the  people 
of  the  state  as  paramount  to  their  own  constitution. 

2.  The  laws  and  treaties  of  the  United  States,  made  in  conformity  with  the  con- 
stitution. 

3.  The  law  of  nations,  so  far  as  the  same  has  been  recognised  by  the  United 
States. 

4.  The  constitution  of  the  state. 


BOOK  OF  DEFINITIONS.  741 

5.  The  state  laws,  passed  in  conformity  with  the  powers  granted  by  the  constitu- 
tion, and  according  to  the  forms  prescribed  by  it. 

6.  The  laws  in  force  in  this  state,  at  the  time  its  constitution  was  adopted,  and 
which  have  not  been  since  repealed. 

II.  No  other  laws  or  authority  for  making  laws  are  recognised  as  having  any 
force  to  bind  the  people  of  this  state. 

III.  No  act  of  the  legislature  of  the  United  States  is  law  which  is  not  warranted 
by  some  power  given  to  them  by  the  constitution  of  the  United  States,  and  which 
is  not  made  according  to  the  forms  it  prescribes. 

IV.  No  act  of  the  legislature  of  this  state  is  law  which  is  not  warranted  by  the 
powers  given  to  them  by  the  constitution  of  the  state,  and  is  not  made  according 
to  the  ibrms  it  prescribes,  or  which  contravenes  the  constitution  of  the  United 
States,  or  laws,  or  treaties,  constitutionally  passed  or  made  by  the  government  of 
the  United  States. 

V.  If  any  provision  in  the  constitution  of  the  State  should  be  found  to  contravene 
the  constitution  of  the  United  States,  or  any  constitutional  laws  or  treaties  made 
under  it — the  latter  must  prevail. 

VL  Rules,  ordinances,  and  by-laws,  made  by  any  court,  corporation,  body  politic, 
or  society,  pursuant  to  powers  legally  vested  in  them  by  the  legislature,  have  the 
force  of  law  to  the  extent  of  those  powers,  as  respects  the  rights  of  persons,  or  pro- 
perty, submitted  to  their  operation. 

LAW  (penal).  A  penal  law  is  one  having  for  its  immediate  object  the  enforce- 
ment of  civil  or  political  duties,  and  the  preservation  of  correspondent  rights.  It 
must  command  certain  acts  to  be  done  or  omitted,  and  must  impose  a  PENALTY 
to  be  enforced  in  the  name  of  the  state  for  a  breach  of  its  provisions. 

Corollaries. — I.  A  law  which  forbids  or  commands,  but  without  declaring  any 
penalty  for  disobedience,  is  not  a  penal  law. 

II.  Laws  authorizing  courts  to  impose  fines,  or  to  imprison,  for  defaults  occurring 
in  the  administration  of  justice,  or  for  disobedience  to  its  rules  for  the  maintenance 
of  order,  or  authorizing  corporations  or  other  collective  bodies  to  impose  fines  on 
their  members,  are  not  penal  laws. 

III.  Ordinances  or  by-laws  of  PUBLIC  or  PRIVATE  CORPORATIONS,  are  not  penal 
laws,  although  they  should  impose  penalties. 

IV.  Laws  declaring  contracts  or  acts,  which  want  certain  formalities,  or  which 
are  not  conformable  to  the  provisions  of  such  laws,  to  be  void,  are  not  penal  laws. 

V.  Laws  which  impose  forfeitures,  or  pecuniary  penalties  to  be  sued  for  in  their 
own  name,  and  for  their  own  use,  or  for  the  joint  benefit  of  the  prosecutor  and  the 
state,  are  not  penal  laws. 

LAW  (military).  Military  laws  are  regulations  for  the  government  of  the  mili- 
tary force  ;  and  although  they  contain  penalties,  they  are  not  considered  as  penal 
laws,  because  their  immediate  object  is  not  the  enforcement  of  civil  or  political 
duties. 

LAWS  (of  Nations,)  are  those  rules  which,  by  the  general  consent  of  nations, 
govern  them  in  their  intercourse  with  each  other  in  their  national  capacity.  Oifences 
against  those  laws,  not  being  cogni-zable  in  the  courts  of  this  state,  they  are  not  de- 
tailed in  this  system. 

LAW  (civil).  Every  law  which  does  not  come  within  the  description  of  penal, 
military,  or  national  law,  is,  for  the  purpose  of  these  Codes,  called  CIVIL  LAW. 

LAWFUL.  Nothing  is  lawful  that  contravenes  any  of  the  laws  in  force  in  -this 
state.  All  acts  or  omissions  are  lawful  which  are  not  forbidden  by  some  written 
law  or  by  the  laws  of  nations. 

LYING-IN-WAIT — waiting  in  or  near  a  place  where  the  property  or  person  of 
another  is  expected  to  come  or  be  brought,  for  the  purpose  of  committing  an  offence 
which  shall  affect  such  person  or  property. 

MAGISTRATE.     This  term  means  all  judges,  including  justices  of  the  peace. 

MAGISTRATE  (competent) — one  whose  legal  official  powers  are  sufficient  for 
the  execution  of  the  duty  required. 

MALICE — a  malignant  design  to  cause  INJURY. 

MANIFEST — whatever  is  apparent  of  itself,  and  is  not  made  so  by  other  evi- 
dence or  by  induction. 

Illustration. — In  the  chapter  of  the  Penal  Code,  concerning  offences  against  de- 
cency, there  is  a  provision  forbidding  the  exhibition  of  any  work  MANIFESTLY  de- 
signed to  corrupt  the  morals  of  youth.  If  this  term  had  not  been  introduced,  the 
design  might  be  inferred  from  expressions  or  figures  usually  and  innocently  era- 


742  BOOK  OF  DEFINITIONS. 

ployed  in  works  of  art  or  science,  but  at  which  overstrained  delicacy  or  puritanism 
might  take  offence. 

MAY — when  employed  to  confer  a  power,  is  intended  to  render  the  exercise  of 
it  discretionary. 

MINOR — any  person  under  the  age  of  twenty-one  years.  All  the  rules  and 
provisions  of  penal  law,  with  respect  to  minors,  apply  to  them,  although  they  may  be 
emancipated. 

MISDEMEANOR — any  OFFENCE  less  in  degree  than  a  crime. 

MISTAKE— a  belief  in  the  being  of  that  which  does  not  exist,  or  in  truth  of  a 
conclusion  that  is  lalse. 

Mistakes  are  REAL  or  INTELLECTUAL.  In  this  system  MISTAKE,  when  not 
qualified  by  the  context,  means  exclusively  a  real  mistake,  as  the  same  is  here  de- 
fined. 

REAL  MISTAKES  relate  to  facts,  and  are  caused  either  by  the  erroneous  operation 
of  the  senses,  or  when  the  impression  on  the  senses  having  been  true,  other  circum- 
stances produce  a  false  conclusion  in  the  mind. 

INTELLECTUAL  MISTAKES  are  such  as  are  caused  wholly  by  a  defective  operation 
of  the  reasoning  faculty,  either  by  drawing  false  conclusions  from  true  principles, 
or  by  adopting  lalse  principles,  and  reasoning  either  correctly  or  falsely  from  them. 

Illustrations  and  Corollaries. — I.  If  one,  intending  to  shoot  an  animal  in  the 
wood,  should  fire  at  a  fur  cap,  and  Kill  the  man  who  wore  it,  thinking  it  to  be  the 
animal  he  was  hunting,  this  would  be  a  REAL  MISTAKE,  produced  by  a  false  im- 
pression on  the  organ  of  sight.  If  the  same  event  should  be  produced  by  supposing 
the  rush  and  tread  of  the  man  through  the  bushes  to  be  those  of  the  animal,  this 
would  be  a  mistake  of  the  same  description,  arising  from  a  false  impression  on  an- 
other sense,  Lthat  of  hearing. 

II.  One  who  shoots  an  innocent  but  unknown  man,  believing  him  to  be  a  robber 
equally  unknown,  of  whose  attempt  he  has  been  apprised,  gives  an  example  of  mis- 
take arising  from  other  circumstances,  without  any  error  of  the  senses.     There 
was  no  error  in  perceiving  the  man ;  both  men  were  equally  unknown  ;  therefore, 
the  error  did  not  arise  from  the  sight ;  but  the  information  of  the  intended  robbery, 
and  the  entry  by  night  at  the  time  he  was  expected,  were  the  circumstances  from 
which  the  erroneous  conclusion  was  drawn,  that  the  innocent  man  was  the  robber. 

III.  If  one  should  establish  in  his  own  mind,  the  erroneous  principle  that  no  hu- 
man law  can  rightfully  control  his  revenge  for  an  injury,  and  from  thence  deduce  a 
right  to  challenge  and  kill  the  man  who  has  offended  him,  this  is  an  intellectual 
mistake,  by  drawing  true  conclusions  from  the  establishment  of  false  principles  un- 
connected with  the  fact. 

IV.  If  a  curator  should  believe  that  because  he  has  a  right  to  administer  the  real 
property  of  his  ward,  he  has  also  that  of  disposing  of  it  at  his  pleasure,  he  commits 
an  intellectual  mistake,  by  drawing  a  false  conclusion  from  true  principles. 

V.  In  those  cases  in  which  the  law  declares  that  an  act  which  would  otherwise 
be  an  offence  is  not  punishable,  or  is  punishable  in  a  less  degree   when  done  by 
mistake,  it  does  not  intend  intellectual  mistakes. 

VI.  All  mistakes,  as  to  the  tenor  or  the  construction  of  law,  are  intellectual  mis- 
takes. 

VII.  No  mistake  of  law  can  excuse  or  palliate  an  offence. 

MONTH,  in  this  system — by  the  term  month,  a  calendar  month  is  always  in- 
tended. 

TO  OBSTRUCT,  as  applied  to  any  proceeding  or  course  of  action — means  not 
only  to  stop  altogether,  and  to  interrupt  for  a  time,  but  to  render  inconvenient, 
or  to  turn  out  of  the  usual  legal  course. 

OFFENCE,  is  the  doing  what  a  PENAL  LAW  forbids  to  be  done,  or  omitting  to 
do  what  it  commands.  In  most  cases  the  contravention  must  be  voluntary  to  con- 
stitute the  offence ;  but  there  are  exceptions  to  this  part  of  the  definition  to  be 
found  in  the  description  of  different  offences  in  the  Penal  Code. 

Developments. — I.  Penal  law  here  is  not  used  synonymously  with  penal  statute. 
If  a  penal  statute  should  contain  any  prohibition  not  SANCTIONED  by  a  penalty,  the 
breach  of  that  part  of  the  statute  would  not  be  an  offence. 

II.  An  act,  or  omission,  in  contravention  of  a  penal  law,  is  not  an  offence  in  any 
one  who  does  not  come  within  the  purview  of  the  law. 

OFFICE,  is  a  delegation,  either  mediately,  or  immediately,  from  the  state,  of 
powers  to  perform  certain  duties ;  either  for  carrying  the  operations  of  government 
in  some  one  of  its  branches,  which  is  called  a  PUBLIC  OFFICE,  for  performing  some 
duty  in  relation  to  some  designated  individuals,  or  their  property,  which  is  denomin- 
ated a  PRIVATE  OFFICE,  or  for  exercising  certain  functions  unconnected  with  the 


BOOK  OF  DEFINITIONS.  743 

state  government  in  a  public  or  private  corporation,  which  is  designated  as  a  CORPO- 
RATE OFFICE.  In  relation  to  the  functions  they  require,  offices  are  divided  into 
CIVIL  and  MILITARY  ;  and  civil  offices  are  either  LEGISLATIVE,  JUDICIAL,  or  EXE- 
CUTIVE. 

OFFICER  (civil).  Any  one  who  fills  a  legislative,  executive,  or  judicial  office 
of  the  state.  No  one  is  an  officer  until  he  has  received  the  evidence  designated  by 
law  of  his  election  or  appointment,  and  (where  they  are  required  by  law)  unless  he 
has  taken  the  oath  of  office  and  given  security  for  its  faithful  performance.  But 
any  one  performing  the  functions  of  an  office  without  being  thus  qualified,  is  liable 
to  all  the  penalties  imposed  by  law  for  any  misconduct  of  which  he  may  be  guilty 
in  the  exercise  of  such  office. 

OFFICER  (military).  One  who  fills  an  office  in  the  army,  or  navy,  or  militia  : 
the  last  are  considered  as  military  officers  only  when  doing  military  duty. 

OFFICERS  (legislative).  The  members  of  the  general  assembly  are  legislative 
officers.  The  governor  or  person  acting  as  such  is  an  executive  officer :  but  per- 
forms legislative  functions  in  exercising  his  right  of  sending  back  bills  to  the  gene- 
ral assembly  for  reconsideration. 

OFFICERS  (judicial).  All  those  officers  whose  legal  functions  are  the  decision 
of  litigated  questions  either  of  law  or  of  fact.  Judges,  or  those  who  are  exclusively 
employed  in  the  administration  of  justice,  justices  of  the  peace,  clerks,  and  other 
officers  of  courts  are  judicial  officers. — ARBITRATORS  and  jurors  are  not  officers. 

OFFICERS  (executive).  Every  PUBLIC  OFFICER  comes  under  this  description, 
whose  duties  are  neither  military,  legislative,  nor  judicial. 

ORDINARY  CARE— ORDINARY  ATTENTION.  These  terms  signify  that 
degree  of  attention  and  care  which  a  man  of  common  prudence  and  activity  em- 
ploys in  his  daily  occupations  :  they  exclude  that  deliberation  and  solicitude  which 
is  shown  by  men  of  extraordinary  circumspection  and  diligence  in  common  affairs, 
or  which  concerns  of  more  than  ordinary  interest  excite  in  all. 

PANEL,  is  the  list  formed,  according  to  law,  of  the  names  of  the  grand  or  petit 
jurors  summoned  to  attend  a  court. 

PERSONATE — to  pretend  to  be  another,  either  by  assuming  his  name,  his  ad- 
dition, designation  of  office,  occupation  or  place  of  abode,  with  an  intent  to  injure 
or  defraud. 

POISON — any  substance  which,  by  some  inherent  quality,  causes  death,  when 
applied  to,  or  received  in  the  human  body. 

POISONING — the  act  of  administering  poison.  It  is  effected  by  any  of  the 
means  by  which  the  poisonous  substance  may  operate,  whether  by  swallowing,  by 
respiration,  by  incision,  or  by  any  other  mode  of  application. 

Corollaries  from  the  two  last  definitions. — I.  Death  caused  by  the  deprivation 
of  respirable  air,  is  not  poisoning. 

II.  To  suffocate  by  smoke  or  steam,  or  to  kill  by  any  of  the  gaseous  fluids,  which 
cause  death  by  stopping  respiration,  is  not  poisoning. 

III.  Death  caused  by  the  inhaling  of  any  gaseous  fluid,  which  by  some  deleterious 
quality  it  possesses,  causes  death  when  brought  into  contact  with  the  organs  of 
respiration,  is  poisoning. 

IV.  The  deadly  quality  must  be  inherent  in,  not  adventitious  to,  the  substance. 
Death  occasioned  by  the  administration  of  a  substance,  which  disorders  the  func- 
tions of  the  body,  but  does  not  usually  produce  death  in  the  quantity  in  which  it 
was  administered,  is  not  poisoning ;  but  may  be  murder,  or  a  less  offence,  accord- 
ing to  the  intent. 

V.  The  deleterious  effect  may  be  supplied  by  the  quantity.     A  substance,  which 
given  in  small  quantities  may  have  no  deadly  effect,  may  come  under  the  descrip- 
tion of  poison,  if  administered  in  a  quantity  that  usually  causes  death. 

PROPERTY.  This  term  conveys  a  compound  idea  composed  of  that  which  is 
its  subject,  and  of  the  right  to  be  exercised  over  it.  In  relation  to  its  object,  pro- 
perty is  CORPOREAL  or  INCORPOREAL  ;  the  other  part  of  the  definition,  the  right 
connected  with  the  object,  is  that  of  possessing,  and  using  with  respect  to  corpo- 
real property,  or  of  enforcing  or  transferring  with  respect  to  that  which  is  incorpo- 
real. 

PROPERTY  (corporeal).  Is  that  property  which  is  material  in  the  physical 
sense  of  the  word,  or  which  may  be  perceived  by  any  of  the  corporeal  senses.  . 

PROPERTY  (incorporeal).  Means  the  right  to  enjoy  either  at  the  present,  or 
any  future  time,  sonje  species  of  corporeal  property  not  in  the  possession  of  the 
person  having  the  right ;  and  for  this  reason  in  common  parlance,  and  frequently'  in 
this  system,  it  is  called  a  RIGHT. 


744  BOOK  OF  DEFINITIONS. 

PROPERTY  (real).  Is  land,  and  every  thing  naturally  rooted  or  growing 
therein,  or  artificially  and  permanently  erected  on,  or  affixed  to  the  soil. 

Corollaries,  Illustrations,  and  Developments. — I.  By  land  or  soil  is  meant  not 
only  ground  capable  of  cultivation,  but  every  other  matter  composing  the  globe, 
while  it  forms  a  part  thereof;  therefore  rocks  and  minerals,  while  they  are  yet  in 
the  quarry  or  mine,  enter  into  this  definition,  but  cease  to  form  a  part  of  the  land 
when  they  are  dug  out  or  detached. 

II.  Trees  and  all  other  vegetable  matters,  while  they  are  rooted  in  the  soil, 
whether  produced  by  nature  alone,  or  by  nature  aided  by  cultivation,  and  their  fruits 
while  they  are  attached  to  them  are  real  property :  but  the  plants  cease  to  be  real 
property  when  they  are  rooted  out  or  cut  down,  as  do  the  fruits  after  they  are 
separated  from  the  plants  which  produced  them. 

III.  Land  covered  with  water,  and  the  water  standing  in  or  upon  or  flowing  over 
the  soil,  is  real  property. 

IV.  Every  thing  that  is  constructed  upon  the  land  by  art,  which  is  not  by  its 
construction  calculated  and  intended  for  locomotion,  and  all  things  permanently 
fixed  to  such  erections  as  parts  thereof,  are  real  property.     Therefore,  a  BUILDING 
erected  on  a  foundation  of  wood  or  stone,  or  on  posts,  is  real  property  ;  but  one 
resting  on  wheels  or  slides,  and  intended  to  be  moved  from  place  to  place,  is  not 
real,  but  personal  property,  as  are  also  all  furniture,  ornaments,  or  implements  of 
trade  which  are  usually  moved,  although  they  may  be  fastened  to  the  soil  or  the 
building. 

V.  The  rents  of  real  property  reserved  to  the  proprietor,  while  they  are  unpaid, 
whether  such  rent  be  reserved  in  money  or  other  things,  is  real  property. 

PROPERTY  (personal).  Every  species  of  property  which  is  not  real  property, 
comes  under  this  description. 

Corollaries. — I.    Money,  bank  bills,  and  public  securities,  are  personal  property. 

II.  Credits,  or  the  right  of  demanding  or  suing  for  money  or  other  personal  pro- 
perty, and  the  evidence  of  such  debts,  are  personal  property,  whether  the  same  be 
debts  of  a  personal  nature  or  secured  on  land. 

III.  Rents,  or  annuities  charged  on  hand  payable  to  any  one  but  the  proprietor  of 
the  land,  are  personal  property. 

IV.  The  title  deeds  of  real  property,  are  personal  property. 

V.  Shares  in  any  banking,  commercial,  or  manufacturing  corporations  or  socie- 
ties, and  the  certificates  and  other  evidences  of  ownership  thereof,  are  personal 
property,  although  such  society  or  corporation  may  own  real  estate. 

PUBLIC  PRISON— the  building  designated  by  law,  or  used  by  the  sheriff,  in 
each  parish,  for  the  confinement  of  those  whose  persons  are  judicially  ordered  to  be 
kept  in  custody. 

If  the  prison  designated  by  law  should  be  destroyed,  or  if  none  should  be  pro- 
vided, the  sheriff  must  find  some  place  for  the  imprisonment  of  those  who  are  com- 
mitted to  his  custody ;  and  this  place  is  then  a  PUBLIC  PRISON,  although  it  may  be 
a  private  house. 

PUBLIC  PROSECUTOR— the  attorney-general,  the  district  attorneys  in  their 
respective  districts,  any  person  legally  performing  the  duties  of  either  of  these 
officers,  and  any  other  officer  who  may  be  hereafter  appointed  by  law  to  prosecute 
offenders  on  the  part  of  the  state. 

PUBLIC  RECORD — a  written  memorial  made  by  a  public  officer  authorized 
by  law  to  perform  that  function,  and  intended  to  serve  as  evidence  of  something 
written,  said,  or  done. 

Corollaries. — I.  Every  statement  in  writing,  made  by  a  public  officer,  is  not  a 
public  record.  It  must  be  one  which  that  officer  is  specially  authorized  by  law  to 
make  and  record. 

II.  It  must  be  memorial ;  by  which  is  meant  a  written  statement,  intended  to 
preserve  the  remembrance  of  what  it  contains. 

III.  It  must  also  be  intended  to  serve  as  legal  evidence,  the  force  of  which  is 
provided  for  in  the  Code  of  Evidence. 

PUBLISHING,  as  applied  to  libels  and  violations  of  epistolary  correspondence, 
means  the  mechanical  operation  of  engraving,  copying,  painting,  printing,  or  writ- 
ing, from  the  dictation  or  reading  of  another ;  and  CIRCULATING  is  the  selling, 
giving,  distributing,  reading,  or  exhibiting  it  to  others. 

TO  RECEIVE — voluntarily  to  take  from  another  what  is  voluntarily  offered. 

RECOGNIZANCE,  is  an  engagement  in  writing  to  pay  a  penalty  therein  ex- 
pressed, if  the  person  making  the  engagement,  or  some  other  designated  person, 


BOOK  OF  DEFINITIONS.  745 

shall  not  do  a  specified  act  required  by  law,  or  shall  not  abstain  from  doing  other 
specified  acts. 

REPUTATION  (general) — estimation  for  those  qualities,  the  possession  of 
which  is  essential  to  happiness  in  society,  not  those  which  render  one  more  agree- 
able in  it. 

RIGHT,  is  in  one  sense  synonymous  with  INCORPOREAL  PROPERTY.  In  the 
other  and  more  enlarged  sense,  it  signifies  every  ADVANTAGE  that  man  ought  to 
enjoy  according  to  the  laws  of  nature,  which  are  called  NATURAL  RIGHTS  ;  or, 
according  to  law,  which  are  called  LEGAL  RIGHTS. 

RIGHTS  (political).  Political  rights  form  one  of  the  divisions  of  legal  rights. 
They  are  those  which  are  given  by  the  constitution  or  by  law  of  electing,  or  being 
elected,  or  appointed,  to  fill  any  PUBLIC  OFFICE,  or  to  perform  any  functions  in 
any  branch  of  the  government. 

RIGHTS  (civil).  Civil  rights  are  those  which  every  free  person  is  authorized, 
by  law,  to  exercise  for  the  preservation  either  of  his  own  person,  property,  or  repu- 
tation ;  or  of  the  persons,  property,  or  reputation,  of  certain  designated  individuals, 
by  virtue  of  some  authority  conferred  by  law,  given  by  consent,  or  vested  in  him  by 
the  powers  annexed  to  some  PRIVATE  or  CORPORATE  OFFICE. 

SCHOOL-MASTER,  is  a  person  employed  for  the  education  of  youth,  of  either 
sex,  in  the  arts  or  sciences. 

Corollary  and  additional  Provision. — I.  This  definition  includes  private 
teachers  of  any  art  or  science,  and  professors  and  tutors  in  universities,  colleges, 
and  academies,  as  well  as  in  schools. 

II.  The  right  of  restraint  and  correction  given  by  the  Code  to  school-masters, 
may  be  modified  by  agreement  with  their  employers. 

SECURITIES  FOR  MONEY,  mean  the  written  evidence  of  the  existence  of  a 
debt. 

SIGNATURE,  when  used  in  relation  to  an  instrument  in  writing,  means  a  name, 
a  firm,  or  a  mark,  affixed  thereto,  in  order  to  give  it  validity  as  the  act  of  the  party 
whose  name,  firm,  or  mark,  is  so  affixed.  The  name  of  a  witness,  subscribed  to  an 
instrument,  is  also  a  signature ;  but  it  is  always,  when  mentioned  in  this  system,  dis- 
tinguishable by  the  context  from  the  signature  of  the  party. 
TO  SIGN,  means  to  affix  a  signature. 

THREAT.  When  this  word  occurs  without  any  qualifying  expression  to  show 
the  nature  of  the  evil  that  is  threatened,  it  means  a  menace  of  great  and  illegal 
injury  to  person,  property,  or  reputation. 

VERBAL  PROCESS,  is  a  written  account  of  any  proceeding  or  operation  re- 
quired by  law,  signed  by  the  person  commissioned  to  perform  the  duty,  and  attested 
by  the  signature  of  witnesses. 

TO  UTTER,  as  applied  to  a  false  or  forged  instrument,  means  not  only  the 
declaring  it,  in  words,  to  be  true,  but  the  saying  or  doing  with,  or  in  relation  to  it, 
any  thing  that  shows  a  design,  to  cause  another  to  believe  that  the  instrument  is 
true. 

WARRANT,  is  the  written  order  of  a  magistrate,  attested  by  his  signature, 
authorizing  the  person  or  officer  to  whom  it  is  directed  to  perform  certain  duties  of 
executive  justice  therein  specified. 

WORDS  FOLLOWING.    This  expression,  used  in  relation  to  the  recital  of 
an  instrument  in  writing,  includes  all  numerical  figures,  or  other  written  signs,  or 
marks,  contained  in  the  instrument  to  which  they  relate. 
WRIT,- is  a  like  order,  issued  by  a  court,  under  its  seal. 

WRITING.     Whenever  the  contrary  does  not  appear  from  the  context,  this 
word  means,  not  only  words  traced  with  a  pen,  or  stamped,  but  printed,  or  engraved, 
or  made  legible  by  any  other  device. 
YEAR.     The  year  intended  in  this  system  is  the  calendar  year. 


THE  END. 
4  T 


A    000705017     2 


